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Sovereignty and Decolonization: Realizing Indigenous Self-Determination
at the United Nations and in Canada
by
Audrey Jane Roy B.A., Cornell University, 1998
A Thesis Submitted in Partial Fulfillment of the
Requirements for the Degree of
MASTER OF ARTS
in the Department of Indigenous Governance Programs
We accept this thesis as conforming to the required standard
Dr. Taiaiake Alfred, Supervisor (Indigenous Governance Programs)
Dr. James Tully, Departmental Member (Department of Political Science) Dr. Leslie Brown, Outside Member (Department of Social Work) Dr. Norman Ruff, External Examiner (Department of Political Science)
All rights reserved. This thesis may not be reproduced in whole or in part, by photocopy
or other means, without the permission of the author.
ii Supervisor: Dr. Taiaiake Alfred
ABSTRACT
The inclusion of self-determination in the two international human rights
covenants and in the Declaration on the Granting of Independence to Colonial Peoples
evidence self-determination’s place in the language of international human rights at the
United Nations. Though these documents declare that “all peoples have the right of self-
determination,” a closer look at the history of self-determination at the UN and its
relationship to decolonization illustrates how member states of the United Nations have
carefully excluded indigenous peoples from being counted within the seemingly inclusive
language of “all peoples.”
The study is divided into two parts. Part I, Chapter 1 examines United Nations
dialogue surrounding self-determination and decolonization and reveals the narrow
definitions accepted by that international body. Chapter 2 presents academic
understandings of both the sub ject and content of self-determination and concludes by
offering alternatives that make the right of self-determination accessible to all peoples.
Chapter 3 highlights the distinguishing historical context of indigenous claims to self-
determination and re-conceptualizes the frequently misunderstood terms ‘nation’ and
‘state.’
Part II applies ideas developed in Part I to the Canadian context. Chapter 4
reveals how the tenets underlying Crown policy perpetuate the colonial relationship
implemented by early European settlers and how the Canadian legal system legitimizes
the Crown’s assumption of sovereignty and the continuing denial of indigenous
nationhood. Chapter 5 describes how federalism can offer a unique opportunity to
reconfigure the Canadian state and decolonize the relationship between the Crown and
indigenous peoples.
iii Examiners:
Dr. Taiaiake Alfred, Supervisor (Indigenous Governance Programs)
Dr. James Tully, Departmental Member (Department of Political Science) Dr. Leslie Brown, Outside Member (Department of Social Work) Dr. Norman Ruff, External Examiner (Department of Political Science)
iv
TABLE OF CONTENTS
ABSTRACT....................................................................................................................ii TABLE OF CONTENTS............................................................................................... iv FOREWARD ................................................................................................................. vi INTRODUCTION ..........................................................................................................1
PART I: SELF-DETERMINATION AT THE UNITED NATIONS: EXCLUDING INTERNALLY COLONIZED PEOPLES ......................3
Chapter 1: Self-determination in United Nations Discourse.................. 4 The Charter and the Universal Declaration.....................................................................4
The San Francisco Conference and the Charter.......................................................... 4 The Commission on Human Rights and the Universal Declaration........................... 5
From principle to the right of select colonial peoples.....................................................7 The Trusteeship System and non-self-governing territories ....................................... 8 Defining a ‘colony’ and ‘achieving self-government’ .............................................. 10 Self-determination in the Covenants......................................................................... 11 The Belgium Thesis .................................................................................................. 13 Resolution 1541 and the Declaration on Colonial Populations ................................ 17
Chapter 2: Expanding the Scope of Self-Determination...................... 24 Introduction...................................................................................................................24 United Nations practice and policy...............................................................................25
The subject of self-determination ............................................................................. 27 Application to indigenous peoples ............................................................................ 30
Self-determination for all peoples.................................................................................32 The Québec Study: Self-determination for all peoples............................................. 33 Anaya: The norm of self-determination and the substance-remedy distinction ....... 35 A framework for evaluating group demands ............................................................ 38
Chapter 3: The Norm of Self-Determination and Sovereign Nations... 41 Introduction...................................................................................................................41 ‘Meaningful participation’ and the importance of history............................................42
Imposition of governmental structures without indigenous participation ................ 42 Colonialism, a constitutive denial of a people’s right to self-determination............ 43 On-going violations and participation beyond ‘voting’ ............................................ 47
Differentiating indigenous self-determination: Sovereignty ........................................48 Werther and the question of sovereignty .................................................................. 48 Slattery and scholarly acceptance of Crown assertions of sovereignty.................... 50
International human rights and subjective prioritization ..............................................54 Indigenous peoples as nations and unbinding the nation-state .....................................58
Distinguishing nations and states .............................................................................. 59 Denying indigenous nationhood: Domestication...................................................... 62
v
Multi-Nation states.................................................................................................... 63 Unbinding the nation-state ........................................................................................ 65
Conclusion: Indigenous peoples and self-determination..............................................68
PART II: INDIGENOUS SELF-DETERMINATION AND CANADIAN FEDERALISM......................................................................................73
Chapter 4: Canadian Policy on self-determination and nationhood.... 75 Introduction...................................................................................................................75
Crown legislative authority over indigenous peoples and Section 35 ...................... 76 The Supreme Court and Aboriginal Rights ..................................................................78
R. v. Sparrow: Allowing infringement...................................................................... 78 Building on Sparrow’s precedent: Onus of proof..................................................... 81
Self-government “within the current constitutional framework” .................................82 Crown policy: Self-determination and self-government in the domestic realm ....... 83 Accepting section 35 and non-recognition of nationhood ........................................ 85 Renegotiation and matters not included in the Agreement ....................................... 86 Legislative jurisdiction: Chapter 8 - Fisheries .......................................................... 89 Conclusion: sovereignty in one’s own sphere .......................................................... 91 The Supreme Court and self-government ................................................................. 92
Colonial law and decolonization...................................................................................96 Negotiating nation-to-nation relationships .................................................................100
Certainty and static “relationships”......................................................................... 101 A new relationship: Revisiting the minority/indigenous peoples distinction......... 104 Overlooking fundamental disagreements to reach ‘agreement’?............................ 107
Chapter 5: Federalism: accommodating a multi-nation state ............ 110 Introduction.................................................................................................................110 The Québec Secession Reference and the Supreme Court on nationhood .................111
Supreme Court jurisdiction over ‘nationhood’ ....................................................... 112 Right to secession under international law ............................................................. 113
Canada, federalism, and flexibility .............................................................................115 Federalism in Canada.............................................................................................. 116 Federalism: Flexible, diverse, and able to accommodate national claims .............. 117
Treaty Federalism .......................................................................................................119 Territorial and non-territorial federalism................................................................ 120 The Belgium example ............................................................................................. 121 Asymmetrical Federalism ....................................................................................... 123 Other federal elements that best facilitate national self-determination................... 125
As a freshman in college, I enrolled in a class entitled “Topics in Native
American Literature” and had my first exposure to what the term ‘world view’ really
meant. Previously, I had certainly known that human beings are unique individuals with
their own preferences, opinions, and particular description of reality. The class, however,
showed me just how different ‘perspectives’ can really be. My own particular academic
inclinations and the subsequent discovery that history has various interpretations led me
away from an anthropological microscope to historical studies, politics, and policy. For
an idealistic young woman, it was from there a logical progression to human rights and
justice, and the two ideas have subsequently become the formative passions of my
graduate life.
The interdisciplinary study that follows begins with the dual facts of indigenous
claims to the right of self-determination and the repeated denial of those claims
internationally at the United Nations and domestically in nation-states such as Canada.
Indigenous assertions of the right to self-determination including self-government and
territorial and resource control have not been accepted by Crown policy makers or courts
nor by the Canadian population at large. Repeatedly denied such recognition, the
indigenous struggle has garnered a good deal of scholarly attention. Other studies have
examined the subjects of self-determination, indigenous peoples, and Canada
independently or in different combinations – Indigenous peoples and the UN,1 Self-
determination at the UN,2 or Indigenous peoples and self-government in Canada,3 for
example. Certainly the subject of indigenous peoples, self-determination, and the
1 See, for example, S. James Anaya, Indigenous Peoples in International Law (New York: Oxford Press, 1996); Venn, Sharon, Our Elders Understand Our Rights: Evolving International Law Regarding Indigenous Rights (Penticton, BC: Theytus Books Ltd, 1998). 2 See, for example, Hurst Hannum, Autonomy, Sovereignty, and Self-Determination: The Accommodation of Conflicting Rights (Philadelphia: University of Pennsylvania Press, 1990); Johnson, Harold S, Self-Determination Within the Community of Nations (Netherlands: Sijthoff, 1967); Micha Pomerance, Self-Determination in Law and Practice (Boston: Martinus Nijhoff Publishers, 1982); A. Rigo Sureda, The Evolution of the Right of Self-Determination: A Study of United Nations Practice (Leiden, Holland: A.W. Sijthoff, 1973); Umozurike Umozurike Oji, Self-Determination in International Law (Hamdon, CT: Archon Books, 1972). 3 See, for example, Guntram Werther, Self-Determination in Western Democracies: Aboriginal Politics in a Comparative Perspective (Westport, CT: Greenwood Press, 1992); Michael Asch, ed, Aboriginal and Treaty Rights in Canada (Vancouver: UBC Press, 1997); Hylton, John, ed, Aboriginal Self-Government in Canada: Current Trends and Issues (Saskatoon, Saskatchewan: Purich Publishing, 1994).
vii relationship between domestic and international policy is far too large to cover
comprehensively in a masters thesis. It is certainly effective to separate these broad
topics into smaller questions and issues, yet losing a broader perspective is harmful, both
domestically (where not realizing the scope of the indigenous ‘problem’ can lead to the
erroneous expectation that local problems will somehow ‘go away’) and internationally
(where local problems only receive attention when they become full- fledged and often
violent conflicts).
This study will attempt to avoid the extremes of a narrow analysis of Canadian
policy that underemphasizes the international scope of the issues and a complete study of
international human rights that offers only a cursory glance at the Canadian domestic
realm. Starting with an acceptance of the indigenous assertion of their right to self-
determination, this paper will look into the fears, understandings, and definitions that
have caused the denial of this right and prevented the creative recognition of indigenous
self-determination in territories shared by more than one nation. Tracing the
development of self-determination at the UN, which is itself a state run organ, and
examining the interrelationship among the meanings given to states, self-determination,
nations and sovereignty provides a more nuanced and contextual understanding of the
actions, tendencies, and inhibitions of the Canadian state in response to native claims. As
a non- indigenous person myself, I feel that at best such a study will aid non-indigenous
people, and possibly indigenous peoples as well, in understanding the larger implications
of the indigenous struggle and serve as a reminder that change both domestically and
internationally is not only possible, but imperative. I hope that this paper will encourage
further study of indigenous issues and most importantly further action around indigenous
claims to self-determination.
“I am part of all that I have met,” said Tennyson, and this thesis “in partial
fulfillment of the requirements for the degree of Masters of Arts” is no less. I am grateful
to all those who have allowed me to share in their journey for however brief a time and
from whom I have learned so much. I would especially like to thank Dr. David Moore
who first introduced me to Native Americans at an ungodly hour of the morning. His
open and welcoming approach to learning, and his ready support of all my hopes and
viii dreams helped start me down the path of indigenous studies and ignited my passion for
justice. I would also like to thank the Fulbright Fellowship program whose generous
support allowed me to begin my studies in Canada. Dr. James Tully and Dr. Leslie
Brown willingly agreed to serve on my committee, even though it meant email
communications, and I am grateful for their time, support, and encouragement. And
lastly, I would like to thank Dr. Taiaiake Alfred who took a chance on a kid from Cornell.
Your vision, courage and faith in justice have been an inspiration. I am honored to be
your student.
This thesis is dedicated to my parents Jeannine (Barrette) and Albert Roy, Jr, my
brother, Adam John Roy, and my sister, Amber Joyce Roy, without whom I would not
have been able to complete this project and whose support and friendship make all my
dreams seem possible. I would also like to extend special thanks to Mike who listened
and reminded me what hard work can achieve, and to Marianne for teaching me
something about the nature of faith.
AJR Vienna, VA March 2001
INTRODUCTION
The inclusion of self-determination in the two international human rights covenants and
in the Declaration on the Granting of Independence to Colonial Peoples serves as
evidence that self-determination has become part of the language of international human
rights at the United Nations. Though these documents declare that “all peoples have the
right of self-determination, ” creative and persistent indigenous assertions of their status
as self-determining nations have not been accepted by the UN nor by most nation-states.
A closer look at the history of self-determination at the UN and its relationship to
decolonization reveals the layers of meaning implicit in deceptively simple declarations
surrounding self-determination and illustrates how the member states of the United
Nations have carefully excluded indigenous peoples from being counted within the
seemingly all-embracing language of “all peoples.”
The study is divided into two parts. While Part II focuses specifically on Canada,
the first chapter of the longer Part I examines United Nations’ understandings of these
concepts have served to narrow scholarly visions of self-determination and the avenues
open for realizing that right. Drawing in part from the examples provided by the
decolonization process in Africa, Chapter 2 presents academic visions of self-
determination that exclude indigenous peoples and concludes by offering alternatives that
make the right of self-determination accessible to all peoples. This expansive vision of
self-determination is carried into Chapter 3, which highlights the distinguishing historical
context of indigenous claims to self-determination and re-conceptualizes the frequently
misunderstood terms ‘nation’ and ‘state’ as required by the status of indigenous peoples
as sovereign nations. Justice and international understandings of fundamental human
rights, Part I concludes, demand that sovereign indigenous nations be recognized and
their right to self-determination be realized within or without existing nation-states.
Bringing these conclusions into a discussion of Canadian indigenous policy, Part
II reveals how the tenets underlying Crown policy serve to perpetuate the colonial
relationship implemented by the first settlers in the lands now known as Canada and how
the Canadian legal system helps to legitimize the Crown’s assumption of sovereignty and
the continuing denial of indigenous nationhood. Changing the fundamental paradigm
2 within which the Canadian Crown deals with indigenous issues will require both political
and social will. However, the federal model currently embraced by the Canadian nation-
state offers unique opportunities to reconfigure the Canadian state and decolonize the
relationship between the Crown and indigenous peoples. A just and honourable
relationship between indigenous nations within Canada and the Crown based on mutual
trust and on-going negotiation is required to begin to recognize the fundamental human
right of self-determination for indigenous peoples sharing territory with Canada.
A note on the term’ indigenous peoples’
This study uses the highly contested term ‘indigenous peoples’ without entering a
definitional debate. Commentary on its content can certainly be gleaned from the context
of the study, but S. Jim Anaya’s argument for the norm of self-determination I accept in
Chapter 2 makes detailed definition of indigenous peoples unnecessary by extend ing the
right of self-determination to all peoples and groups of people who have been denied
expression of their right to self-determination. Please see that section for more details on
Anaya’s vision.
3
PART I: SELF-DETERMINATION AT THE UNITED NATIONS: EXCLUDING INTERNALLY COLONIZED
PEOPLES
Introduction
Despite international recognition of self-determination as a fundamental human
right, the United Nations has yet to include indigenous peoples among the holders of the
right to self-determination. Tracing self-determination from Charter of the United
Nations to other UN documents such as the International Human Rights Covenants and
the Declaration on the Granting of Independence for Colonial Peoples, Chapter 1 will
explore the narrow definition of self-determination developed at the UN. Building upon
the doctrinal foundation provided in Chapter 1, Chapter 2 will examine the content of
self-determination through the writings of lawyers, politicians and other scholars who
have tried to define self-determination and understand its relationship to international
law. The ongoing dialogue among these individuals is of more than merely academic
interest for indigenous peoples working towards international and domestic recognition
of their right to self-determination. The language used in these debates and their implicit
assumptions help to create the parameters within which self-determination can be
pursued and define the options available for peoples to express and realize the right.
Realizing these limitations, some scholars are looking beyond restrictive understandings
and focusing on self-determination at its most basic level, as a moral ideal and a
fundamental tenet of international human rights. After introducing these expanded
understandings in Chapter 2, Chapter 3 will examine the special case of indigenous
peoples asserting their right to self-determination and explore how recognizing
indigenous nations need not be antithetical to preserving existing states.
4
CHAPTER 1: SELF-DETERMINATION IN UNITED NATIONS DISCOURSE
The Charter and the Universal Declaration
The San Francisco Conference and the Charter
In April of 1945, two-hundred and sixty delegates from 50 governments met in San
Francisco to establish the United Nations. The Charter of the new international
organization they created features self-determination as an important principle and
contains two direct and two indirect references to self-determination. 1 The two direct
references are the result of an amendment proposed by the Soviet Union. At the Great
Power consultations, the Soviet Union introduced an addition to Article 1, paragraph 2
that amended the purposes of the United Nations (addition in italics):
To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples and to take other appropriate measures to strengthen universal peace.
The addition was endorsed by the Great Powers and forwarded to the larger conference
where it was eventually accepted. The phrase “based on respect for the principle of equal
rights and self-determination of peoples” appears again in Chapter IX: International
Economic and Social Cooperation in the introduction to Article 55:
With a view to the creation of conditions of stability and well being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote…
This passage is an echo of the phraseology of Article 1.
The committee discussions surrounding the use of self-determination in these
articles shed light on the meaning of “the principle of equal rights and self-
determination.” Member states argued that self-determination corresponded closely “to
1 Aurelie Cristescu, The Right To Self-Determination: Historical And Current Development On The Basis Of United Nations Instruments. A Study Prepared By A Special Rapporteur. (New York: United Nations, 1981) [E:Cn.4/Sub 2./404/Rev.1] [hereafter Cristescu]
5 the will and desires of people everywhere”2 and “conformed to the principles of the
Charter only insofar as it implied the right of self-government of peoples and not the right
of secession."3 Paragraph 2 intended to “proclaim the equal rights of peoples as such,
consequently their right to self-determination. Equality of rights therefore extends to
states, nations, and peoples."4
When examining self-determination in the Charter of the United Nations, it is
noteworthy that the Charter does not grant the Security Council the authority to redress
breaches of the human rights cited in Article 1 or in Article 55. Human rights in the
Charter, including self-determination, are included in the context of “developing friendly
relations between countries” and are listed as one of the “appropriate measures to
strengthen universal peace.” Equality and self-determination are mentioned as elements
important to peace but the delegates at the San Francisco conference were primarily
concerned with creating an organization that would promote peace.5 As such, they
intentionally left defining human rights and establishing enforcement measures to the
Economic and Social Council.
The Commission on Human Rights and the Universal Declaration
In response to the emergence of human rights as an issue of widespread concern
following World War II, the Charter of the United Nations, unlike the League of Nations
Covenant, contained specific provisions to ensure that human rights would become an
integral part of the new system. The UN’s work on elaborating the rights briefly
articulated in the Charter began in earnest when the Economic and Social Council
established the Commission on Human Rights in 1946. The Economic and Social
Council charged the Commission with several tasks: formulating an international bill of
rights; developing international declarations or conventions relating to a host of human
rights issues including civil liberties; protecting minorities and the status of women; and
2 Quoted in A. Rigo Sureda, The Evolution of the Right of Self-Determination: A Study of United Nations Practice (Leiden, Holland: A.W. Sijthoff, 1973) [Hereafter Sureda, United Nations Practice] Here, 97 taken from Committee I/1 6th meeting. UNCIO vol. VI, p. 296. 3 Cristescu, Documents of the United Nations Conference on International Organizing, I/1/16 (vol. III, p. 296). 4 Ibid., I/1/A/19 (vol. VI, p. 704). 5 Micha Pomerance, Self-Determination in Law and Practice (Boston: Martinus Nijhoff Publis hers, 1982), 9. [hereafter Pomerance, Self-Determination in Law and Practice]
6 developing proposals for the prevention of discrimination on grounds of race, sex,
language, or religion.
In general, the Commission on Human Rights aimed to affirm and uphold the
rights most commonly violated at the time, in this case the mid-twentieth century. Just as
the American Bill of Rights reflects colonial grievances against the British Crown, so
does the Universal Declaration of Human Rights reflect the horrors perpetuated by Hitler
and other totalitarian rulers during World War II.6 Similarly, the exclusion of indigenous
peoples from self-determination and the decolonization granted to distant colonies in the
UN Charter was consistent with the concerns of the time. The peace established after
WWII had involved the affirmation of many colonies, some of which seemed to have
important strategic value. On the other hand, the rights of indigenous peoples were not
foremost in the international gaze, and the newly formed international organization did
not yet accept indigenous peoples and their unique issues as appropriate subject matter.
The connection between current events and the human rights articulated by the
United Nations is certainly understandable; by their very nature, human rights evolve
along with the understanding of the international community and are normally identified
only when they are dramatically violated. In addition to this natural linkage, however,
the decision to protect particular rights is also influenced by the expedient needs of the
moment. An example is the conspicuous absence of self-determination from the
Universal Declaration of Human Rights. Drafted by the Commission on Human Rights
in only two years, the Universal Declaration of Human Rights was adopted on December
10, 1948 with 48 votes of approval in the General Assembly and 8 abstentions.7 Baehr
and Gardenker offer a conc ise summary of the rights included in the declaration:
Roughly three categories of rights can be distinguished in the Universal Declaration. First, certain articles relate to the liberty and spiritual integrity of the human person. These rights include that of life; the prohibition of slavery or servitude, inhuman or degrading treatment of punishment, arbitrary arrest, detention exile; and freedom of thought, conscience, and religion. The second category concerns political life, including the right to freedom of opinion and
6 David Cushman Coyle, The United Nations and How It Works (New York: Columbia UP, 1969), 79. 7 The 8 abstentions were Saudi Arabia, South Africa, and Soviet Union together with four East European states and a Soviet republic whose votes it controlled. [Philip Alston and Henry J. Steiner, International Human Rights in Context (Oxford: Clarendon Press, 1996), 118]
7 expression; and peaceful assembly and association and participation in government, directly or through freely chosen representatives. Finally, the declaration includes social, economic and cultural rights, among which are social security; employment; protection against unemployment; rest and leisure; education; and participation in the cultural life of one’s community. 8
In drafting the Universal Declaration, the Commission on Human Rights endeavored to
fashion a document of substance that would still be accepted by the majority of the world
community. The delegates drafting the Universal Declaration could not agree on the
wording of an article on self-determination, and supporters of the right to self-
determination knew that trying to force its inclusion without nearly universal support
could alienate many of the UN member states. In an effort to gain as many signatures as
possible, self-determination was omitted from the UN’s most dramatic and well-known
human rights document.
Whatever the pragmatic reasons for leaving self-determination out of the
Universal Declaration of Human Rights, its absence indicates the reluctance of member
states to bring self-determination to all nations. Micha Pomerance in Self-determination
in Law and Practice argues that respect for the principle of self-determination mentioned
as a “purpose” in Article 1 of the Charter and as a goal which the UN shall promote
distinguishes it from the principles included in Article 2 in accordance with which the
UN has to act.9 Pomerance’s argument highlights the comparative and qualitative
difference between promoting the principle of self-determination as mentioned in the
Charter, drafted in 1945, and granting all peoples the right to self-determination in the
International Human Rights Covenants, drafted in 1966.
From principle to the right of select colonial peoples
Ironically, perhaps, the direct mention of the ‘principle of self-determination’ in Article 1
of the Charter had less to do with the development of the right at the United Nations than
8 Peter R. Baehr and Leon Gardenker, “Maintaining International Peace and Security,” in The United Nations: Reality and Ideal (Toronto: Praeger, 1984), 101. [Hereafter, Baehr & Gardenker, “Maintaining Peace.”] 9 Pomerance, Self-Determination in Law and Practice, 9.
8 did the allusions to self-determination in Chapter VII on the International Trusteeship
System and in Chapter XI in the Declaration Regarding Non-Self-Governing Territories.
The political imperative of decolonization and the effort to clarify and define the
Trusteeship system in the early 1950s served as the driving forces behind the shift from
the Charter’s principle of self-determination to the right of self-determination expressed
in the international human rights covenants drafted during the 1950s and 1960s.10
Though self-determination is only implied in the Charter chapter describing the
trusteeship system, the idea of self-determination provided the movement for
decolonization a moral and legal rationale.11 Self-determination was certainly discussed
during debates on the preparation of the International Human Rights Covenants but the
debates on decolonization articulated the narrow understanding of self-determination that
provided a powerful contextual limitation on the sweeping language of the Covenants.
Tracing the development of the UN defined relationship between self-determination,
Non-Self-Governing Territories, and decolonization clarifies the current status of self-
determination at the UN and begins to explain the deliberate exclusion of indigenous
peoples as subjects of the right to self-determination.
The Trusteeship System and non-self-governing territories
Self-determination is mentioned indirectly twice in the Charter: Article 76 of
Chapter XII: The International Trusteeship System and in Article 73 of Chapter XI: The
Declaration Regarding Non-Self-Governing Territories. Both articles speak about
developing political institutions based on the “particular circumstances” of each territory
and the “freely expressed wishes of the people concerned.” Aureliu Cristescu, a UN
Special Rapporteur on self-determination, also notes that in the discussions at the San
Francisco Conference regarding these two articles, many state representatives expressed
the opinion that “there is implicitly affirmed – in providing rules of general application
for the transition from a colony to a mandate and from a mandate to a sovereign state – 10 Hurst Hannum, Autonomy, Sovereignty, and Self-Determination: The Accommodation of Conflicting Rights (Philadelphia: University of Pennsylvania Press, 1990), 27. [Hereafter, Hannum, Autonomy, Sovereignty, and Self-Determination] 11 Robert Friedlander, “Self-Determination: A Legal-Political Inquiry" in Self-Determination: National, Regional And Global Dimensions, eds. Yonah Alexander and Robert Friedlander (Westview Special Studies In National And International Terrorism. Boulder, CO: Westview Press, Inc, 1980.), 319. [hereafter Friedlander, “A Legal-Political Inquiry”]
9 the principle that the goal which should be sought is that of obtaining the universal
application of the principle of self-determination.”12 Though these articles do not use the
word self-determination, self-determination was clearly on the minds of the drafting
delegates.
The indirect inclusion of self-determination in the Trusteeship System and the
Declaration on Non-Self-Governing Territories helped to resolve one of the major
cleavages at the Conference, that between colonial and non-colonial powers. In their day,
the visionaries behind the League of Nations Covenant, were able to boldly declare self-
determination for all peoples in part because their definition did not apply to the nations
within the US and other western democracies. As articulated by Wilson and other Allies
during World War I, the clear objective of self-determination was protecting small states
from powerful neighbors, including protecting nationalities forcefully assimilated by
larger ones and breaking up those nations defeated in World War I. In practice, self-
determination was only applied in these limited situations and not universally. At the San
Francisco Conference following World War II, delegates found it harder to agree on the
proper subjects of the right of self-determination and the cases where self-determination
should be applied. The nations represented at the drafting conference included many
non-colonial nations who, led by what El-Ayouty describes as the Afro-Asian block,13
sought freedom and a relatively broad interpretation of self-determination. Many
colonial nations (those having colonies) were more satisfied with the status quo.
The matter was resolved through the trusteeship system outlined in Chapter XII of
the Charter and a declaration on non-governmental territories in Chapter XI. Trusteeship
only applied to colonies that had been treated as prizes of war after WWII or who entered
into the system voluntarily.14 The declaration on non-governmental territories applied to
all other territories and required that administering states ensure the political, economic,
social, and educational advancement of non-self-governing peoples. Administering states
were also obligated to report back to the Secretary General on their progress. As
mentioned above, these goals implicitly named self-determination as an aim for all non- 12 Cristescu, para. 24. 13 See Yassin El-Ayouty, The United Nations and Decolonization: The Role of Afro-Asia (The Hague, Netherlands: Martinus Nijhoff, 1971). [hereafter El-Ayouty, Role of Afro -Asia] 14 Joyce Ada Cooke Gutteridge, “Non-Self-Governing Territories,” in The United Nations in a Changing World (Manchester: Manchester UP, 1969), 15.
10 self-governing nations. Importantly for indigenous peoples, however, the goal of self-
determination was reserved for colonies across the sea from their colonizers. Following
this “blue water thesis,” the Charter carefully avoided threatening the integrity of existing
nation-states and did not specifically recognize the right to self-determination for
indigenous peoples, or others, under domestic colonial regimes.
Defining a ‘colony’ and ‘achieving self-government’
Though carefully drafted to appease both colonial and non-colonial powers, the
Declaration on Non-Self-Governing Territories lacks a clear definition for a non-self-
governing territory and does not articulate specific steps for dealing with negligent
administration of territories by administering powers. Neither does the Charter
specifically delegate responsibility for flushing out the Declaration, which only loosely
described non-self-governing territories as “territories whose peoples have not yet
attained a full measure of self-government.”15 The definition is vague at best and
contains no specific criteria for ascertaining when a non-self-governing territory has
‘attained a full measure of self-government.’16 In Article 73(e), Administering powers
are required to “transmit regularly to the Secretary General…statistical and other
information of a technical nature” but the General Assembly is given no particular
powers with regard to the transmissions or their contents.
These two omissions became painfully obvious almost immediately. In June of
1946, the Secretary General requested that member states submit the names of the non-
self-governing territories under their administrative care. Nation-states from around the
world responded, and Resolution 66 (I) adopted on December 14th, 1946, formally
enumerated the seventy-four territories falling within the scope of Article 73 (e). Two
sessions later, the number of transmissions received by the Security Council had dropped
from 74 to 63. Passed on November 3rd, 1948, resolution 222 (III) entitled ‘Cessation of
Transmission of Information under 73(e) of the Charter’ attempted to address the
‘missing’ transmissions by reminding states of their responsibility to continue
15 UN Charter, Chap. XI, Article 73. 16 El-Ayouty, Role of Afto-Asia, reference lines #73-80.
11 transmitting under Article 73.17 Some states argued that they had ceased transmissions
because the territories in question no longer fell under the definition of a non-self-
governing territory. Achieving ‘self-government’ was the seemingly straightforward
criterion set by Article 73 indicating when a territory had ceased to be non-self-
governing, yet the article provided no definition for ‘self-government’. Before
culminating in two important resolutions in 1960 that provided definitions for these
contested terms, the General Assembly continued to debate the issue and passed
numerous resolutions including Resolution 334 (IV) 2 December 1949, Resolution 567
(VI) 18 January 1952, Resolution 648 (VII) 10 December 1952, and Resolution 742
(VIII) 27 November 1953 which articulated its evolving views.
Self-determination in the Covenants
With the acceptance of the Universal Declaration of Human Rights, the Commission on
Human Rights began to work on the next phase of its mandate: drafting an international
human rights covenants. At its 6th session in 1950, the Commission proposed that the
human rights covenants include the wording “every people and every nation shall have
the right to national self-determination.”18 Over the next several years and against the
backdrop of debates attempting to define non-self-governing territories, the General
Assembly also debated the Commission’s suggestion. States who favored the inclusion
of a provision on self-determination offered three central arguments for the inclusion of
the right to self-determination in the covenants:
1) Self-determination was a prerequisite for other human rights and necessary for the genuine exercise of individual rights; self-determination was ‘cornerstone’ for other rights,
2) Provisions of the Universal Declaration had ‘direct bearing’ on a right to self-determination and the covenant should therefore protect it,
3) Self-determination was a “right of a group of individuals in association” but encroachment on the collective right of the community was also an encroachment on the rights of the individuals of that community. 19
17 Joe Vogler, “Alaska and Statehood, A Factual Primer.” Available from Alaskans for Independence <http://www3.polarnet.com/End_of_Road/soapbox.dir/aip.dir/primer.html> [October 2000] 18 Cristescu Study, para 28. 19 Ibid., paras 29-31.
12 Other delegates expressed caution and no ted that self-determination as it would appear in
the Covenants was not intended to apply to the rights of minorities and that self-
determination should not violate national sovereignty in its application. 20 Referring to
the Charter, some states argued that self-determination was a principle and not a right,
and that as a principle it was too complex and had too many competing understandings to
be included in a binding instrument. Opponents also asserted that self-determination was
a collective right and therefore not a good fit for a document articulating individual
rights.21
By the close of the session in 1952, the General Assembly had reached a decision:
the right to self-determination would be included in “the International Covenant or
Covenants on human rights”. 22 Resolution 545 (VI) GA 5 Feb 1952 stated that an article
“on the right of all peoples and nations to self-determination in reaffirmation of the
principles enunciated in the Charter” should be drafted in the following terms:
All peoples shall have the right to self-determination, and shall stipulate that all States, including those having responsibility for the administration of Non-Self-Governing Territories, should promote the realization of that right, in conformity with the Purposes and Principles of the United Nations, and that States having responsibility for the administration of Non-Self-Governing Territories should promote the realization of that right in relation to the peoples of such Territories.23
In December of that same year, the General Assembly reaffirmed its commitment to
recognizing self-determination. Resolution 637 (VII) declared that self-determination
was a prerequisite to the realization of all fundamental human rights and that member
states of the UN should uphold self-determination for all peoples and nations.24 Though
the article on self-determination in the actual Covenants would contain inclusive
language, the General Assembly’s endorsement of self-determination’s inclusion in the
Covenants is given in a particular context. All peoples shall have the right to self-
determination yet by singling out non-self-governing territories, the General Assembly
20 Ibid., para 32. 21 Ibid., para 44. 22 At this time , it was not clear whether there would be only one or more than one covenant. 23 Resolution 545 (VI) GA 5 Feb 1952, para. 1. 24 Cristescu Study, para 34.
13 clearly identifies the areas where the right is being violated and where self-determination
should be forcefully applied.
The Belgium Thesis
While debating the definition of non-self-governing, or when a non-self-governing
territory ceased to be a non-self-governing territory, the General Assembly was also
struggling to form a definition to identify such territories. In resolution 637 (VII) of
1952, the General Assembly clearly recommended that “States Members of the United
Nations shall recognize and promote the realization of the right of self-determination of
the peoples of Non-Self-Governing and Trust Territories who are under their
administration” and that “States Members of the UN shall uphold the principle of self-
determination of all peoples and nations.”25 It is noteworthy that self-determination was
explicitly named as the goal of the administration of non-self-governing territories the
session after the UN had decided to include self-determination in the forthcoming
international human rights covenants. The formative stages of United Nations discourse
on self-determination and non-self-governing territories were mutually reinforcing and
permanently linked self-determination with non-self-governing territories as identified by
the United Nations.
This linkage was supported by the many member states who favored the right of
self-determination only for colonies. When resolution 637 linked self-determination with
non-self-governing territories, defining those territories and in essence defining who
would be recognized as possessing the right to self-determination became vitally
important. As mentioned above, scholars have dubbed the view that self-determination
should be reserved only for external colonies as the ‘blue water’ or ‘salt water’ thesis.
The salt-water thesis excluded, for example, the Han-Chinese domination of Tibet
because the administering nation (i.e. colonial power) was not geographically separated
from the non-self-governing territory. 26 The salt-water thesis, now the accepted norm at
the United Nations, has also effectively eliminated indigenous peoples from gaining
recognition as self-determining people at the United Nations. In trying to understand
25 GA Resolution 637 (VII) 16 December 1952, as cited in Vogler. 26 Benyamin Neuberger, National Self-Determination in Postcolonial Africa (Boulder, CO: Lynne Rienner Publishers, 1986), 83-84. Hereafter, National Self-Determination.
14 why the salt-water thesis became accepted policy at the United Nations, it is helpful to
look at the arguments made against the strongest proposal opposing the salt-water thesis:
the Belgium thesis.
Before the salt-water thesis became accepted UN policy, some nations attempted
to expand the definition of a non-self-governing territory to include internally colonized
peoples. Belgium took the lead in trying “to extend the obligations entered into by the
UN members under Chapter XI to those parts of the metropolis inhabited by peoples
whose degree of actual subordination to the rest of the state community in the midst of
which they lived placed them in a ‘colonial situation’.” 27 The ‘Belgium thesis,’ as it
came to be known, would have “extended the concept of ‘Non-Self-Governing
Territories’ to include disenfranchised indigenous peoples living within the borders of
independent states, especially if the race, language, and culture of these peoples differed
from those of the dominant population.” 28 In doing so, Belgium was attempting to bring
back 23(b) of the League of Nations Covenant “which bound members to ‘secure just
treatment of the native inhabitants of territories under their control’.” 29
In 1952, Belgium sharply criticized member states having non-self-governing
peoples within their borders for refusing to extend to them the rights guaranteed under the
Charter.30 Belgium argued that many of these populations were disenfranchised, took no
part in national life, frequently resided on clearly delineated territories, and remained
‘unconquered.’ Belgium “could not see how anyone could claim that the States
administering such territories were not what the Charter called States ‘which have or
assume responsibilities for the administration of territories of peoples have not yet
attained a full measure of self-government.’”31 Pointing to states newly formed after the
Second World War, Belgium also argued that there were many examples of ethnical
27 Sureda,United Nations Practice, 103. 28 Pomerance, Self-Determination in Law and Practice, footnote 82 on page 72. 29 Sureda,United Nations Practice, 103. 30 Umozurike, Umozurike Oji, Self-Determination in International Law (Hamdon, CT: Archon Books, 1972), 184 from GA 7th Session, 4th Committee (1952). Hereafter, Self-Determination in International Law. 31 Quoted in Sureda, United Nations Practice, 103 from a statement by Mr. Ryckmans, the Belgium delegate at the GAOR 9th sess. 4th Cttee. 419th mtg. Para. 20.
15 minorities who were no better protected now then when they were under the control of a
colonizer.32
The response of most other member states was unsympathetic and unequivocal.
Chapter XI of the Charter did not “apply to peoples in independent sovereign states who
enjoyed full rights as nationals of the state.”33 The framers of the Charter in San
Francisco had included Article 74, which clearly distinguishes Non-Self-Governing
Territories from a state’s metropolitan areas, in order to restrict application of the term to
peoples and lands geographically distinct from the administrating power. Western
powers, who had indigenous peoples within their borders, led the opposition to Belgium’s
more inclusive vision of a non-self-governing territory.
Writing on the role of African and Asian nations in the process of decolonization
at the UN, El-Ayouty Yassin also points out that the group he calls the Afro-Asian block
also opposed the Belgium thesis. The Afro-Asian block included African state (including
Egypt) and Asian state members of the United Nations and China. The Afro-Asian block
argued that the Belgium thesis put forth the notion of a ‘sacred trust’ based on
developmental terms. The ‘trust,’ they said, was in civilization rather than in a political
institutional framework.34 Quoting an article written by Belgium F. Van Langenhove, El-
Ayouty argues that the Afro-Asian block reminded delegates that the ‘sacred trust’
Belgium spoke of implied paternal control; it was exercised by “states which enjoy a
superior civilization” in relation to “populations of inferior civilization which they
administer, whether these populations lie within or without the frontiers of the state.”35
The thesis, El-Ayouty asserts, argued for the universal application of the ‘trust’ while
leaving the issue of state sovereignty unquestioned. 36
The context from which the Afro-Asian block voiced their protests helps to reveal
some of the underlying objections of the block as well as the faults of the thesis itself.
Many of the African nations participating in the debates as delegates were themselves
recently freed colonial states or nations working towards achieving freedom from
32 F. Van Langenhove. “The Idea of the Sacred Trust of Civilization with Regard to the Less Developed Peoples.” (June 1951), page 13, quoted in El-Ayouty, Role of Afro-Asia, 50. 33 Sureda, United Nations Practice, 104. 34 El-Ayouty, The Role of Afro-Asia, 50. 35 F. Van Langenhove at ibid. 36 El-Ayouty, The Role of Afro-Asia, 51.
16 colonial domination. The salt-water thesis, the alternative to the Belgium thesis,
envisioned self-determination as the evolution towards self-government and
independence, the goal of colonized African nations. By expanding the definition of a
non-self-governing territory and applying self-determination to non-geographically
distinct colonies, independence would not be the obvious and necessary result of self-
determination. Colonies located across the ‘salt-water’ could gain independence without
disrupting the territorial integrity of existing nation-states while independence for
domestic non-self-governing territories had the potential to cause a severe disruption.
Alternate arrangements other than independence would seem to be the natural result of
two self-determining peoples occupying the same territory. The Afro-Asian block
rejected the Belgium thesis rather than accept a definition of a non-self-governing
territory which could de-couple self-determination and independence.
The multi-national nature of many new or soon-to-be decolonized African states
also presented a problem for the universal application of self-determination. Discussing
the Afro-Asian block’s rejection of the Belgium thesis, El-Ayouty states that “as to the
general application of the right to self-determination to minorities within sovereign states,
its dangers were too obvious to be seriously considered.”37 What dangers were so feared
by many emerging nations? In his study on the results of decolonization in Africa,
Benyamin Neuberger notes that nearly all calls for self-determination in Africa were
based on a colonial self that contained a specific ethnocultural core but was not based on
the notion of a pure-ethnocultural group.38 Colonial boundaries in Africa were not based
on the traditional land holdings of the many peoples occupying the African continent.
Rather, territories demarcated by colonial powers nearly always contained many nations.
Because the type of decolonization favored in Africa was based on colonial units, not on
national units or peoples, recognition of minorities and their claims to self-determination
weakened any bid for independence from a colonizer and worked against the self-
determination of the larger national unit.39 Hurst Hannum, a noted international scholar,
remarked that the same African nations who were so instrumental in pushing for a right
to self-determination took a very narrow view of self-determination outside of the
37 Ibid., 53. 38 Neuberger, National Self-Determination, 52-53. 39 Ibid.
17 colonial context; territorial integrity and ‘national’ unity would take priority. 40 Micha
Pomerance has also noted that self-determination is almost exclusively applied when
colonialism takes the form of white colonizer oppressing a black population and almost
never when one black population oppresses another.41
In addition to highlighting their own concerns over solidifying independence as
the end goal of self-determination and the competing claims of domestic numerical-
minority nations, the Afro-Asian block’s objections to the Belgium thesis highlight its
inherent weaknesses. The presentations by Belgium delegates at the UN and the article
quoted by El-Ayouty range from truly ‘enlightened’ to blatantly and racially Darwinistic.
Following suggestions of the universal application of self-determination are statements
about ‘inferior civilizations’ that smack of paternalism and an end goal of assimilation.
In terms of the struggle of indigenous peoples for international recognition of their
inherent right to self-determination, the acceptance of the Belgium thesis would probably
have widened the possible avenues for domestic action and given an international
backing for self-determination efforts that does not yet exist. But given prevalent
attitudes regarding the ‘level of civilization’ of indigenous peoples in 1952 and the
apparent representation of those views in the Belgium thesis, it should not be supposed
that the Belgium thesis of 1952 would have been a cure-all for the issues and obstacles
facing indigenous peoples pursuing their rights internationally today.
Resolution 1541 and the Declaration on Colonial Populations
Whatever hindsight can tell us about its detractions and its advantages, the Belgium thesis
failed to gain a following at the UN and the salt-water thesis carried the day. General
Assembly Resolution 1541 (XV), descriptively entitled ‘Principles Which Should Guide
Members In Determining Whether Or Not An Obligation Exists To Transmit The
Information Called For Under Article 73e Of The Charter,’ culminated the process of
defining when self-government had been reached by a territory and of defining more
40 Hannum, Autonomy, Sovereignty, and Self-Determination, 46-47. 41 Pomerance, Self-Determination in Law and Practice, 41-42.
18 carefully what constituted a colony. 42 “A Non-Self-Governing Territory can be said to
have reached a full measure of self-government,” the resolution said, only by
a) emergence as a sovereign independent state, b) free association with an independent state, or c) integration with an independent state.43
In line with the salt-water thesis, Principle IV of the resolution also stated
that
Prima facie there is an obligation to transmit information in respect of a territory which is geographically separate and is distinct ethnically and/or culturally from the country administering it.44
Once this prima facie case has been met, other elements of an “administrative, political,
juridical, economic, or historical nature” may be considered. If these additional elements
affect the relationship between the metropolitan State and the territory concerned in a manner which arbitrarily places the latter in a position or status of subordination, they support the presumption that there is an obligation to transmit information under Article 73e of the Charter.45
Minus the phrase “geographically distinct,” Principles IV and V can easily be read as
applying to indigenous peoples within a colonizer state. However, as has been discussed,
the inclusion of the territorially distinct disclaimer is no accident. In fact, Principle I of
Resolution 1541 leaves little doubt as to where self-determination should be applied
stating, “the authors of the Charter of the United Nations had in mind that Chapter XI
should be applicable to territories which were then known to be of the colonial type.”
Regardless of how we view the term ‘colonial’ now, it would be very difficult to argue
that indigenous peoples sharing territory with sovereign states were accepted as being ‘of
the colonial type’ by the authors of the Charter.
Considered alone, resolution 1541 attempted to firmly establish the terms for
reporting on the administration of non-self-governing territories. The larger scope of
42 Ibid., 10. Other statutes in this process include GA Resolution 334(IV) 2Dec49, 567(VI) 18Jan52, 648(VII) 10Dec52 and 742(VII) 27Nov53. (Ibid.) 43 Resolution 1541 (XV), Annex, 15 UN GAOR, Supp. (No. 16), UN Doc. A/4684 (1960) at 29; principle VI. 44 Ibid. 45 Ibid., principle V.
19 resolution 1541, however, lies in its relationship to another product of the fifteenth
session of the General Assembly: The Declaration on the Granting of Independence to
Colonial Countries and Peoples.46 As discussed above, resolution 1541 equated colonies
with the Non-Self-Governing Territories described in Chapter XI of the Charter. It then
proceeded to declare that a non-self-governing territory must be ‘geographically separate’
from its administrating power. Importantly, this definition of a non-self-governing
territory also becomes the definition of a colony in terms of United Nations
understandings. “Recognizing that the peoples of the world ardently desire the end of
colonialism in all its manifestations,” the Declaration on Colonial Peoples declares in
Article 2 that “all peoples have the right to self-determination.” However, Resolution
1541 also ensures that “all its manifestation” does not include colonialism when it occurs
within a shared (not ‘geographically distinct’) territory.
This revision of the expansive language of Article 2 is echoed elsewhere in the
Declaration on Colonial Peoples. Article 6 seems to eliminate the recognition of the right
of self-determination for peoples sharing land with their colonizer by stating that
Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter and the United Nations.47
In addition, the final article of the Declaration on Colonial Peoples declares that all
member states of the UN “shall observe faithfully and strictly” Charter and Universal
Declaration provisions “on the basis of equality, non- interference in the internal affairs of
all States, and respect for the sovereign rights of all peoples and their territorial
integrity.” Virtually any realization of the right to self-determination by an internally
colonized peoples sharing territory with their ‘administering power’ would require at
least a partial disruption of the current political and territorial regime of their colonizer;
46 GA Resolution 1514 (VX) of 14 December 1960. These two 1960 resolutions have remarkably similar resolution numbers. Throughout this paper, the Declaration on the Granting of Independence to Colonial Countries and Peoples (Resolution 1514), will be referred to as the Declaration on Colonial Peoples while Resolution 1541 (XV) entitled ‘Principles Which Should Guide Members In Determining Whether Or Not An Obligation Exists To Transmit The Information Called For Under Article 73e Of The Charter’ will be referred to by its number. 47 Emphasis mine.
20 the language of the Declaration makes it possible to deny all such expression based on
the absolute non-alteration of the current administering state.
Most damaging to the aspirations of peoples sharing territory with their colonizers
is Article 1 of the Declaration on Colonial Peoples. Article 1 states that
The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace and cooperation. 48
As Umozurite argues, the "the resolution does not offer false hope to minorities within
states, for it expressly refers to 'alien subjugation' as an essential qualification to 'peoples'
in 'all peoples have the right to self-determination.'"49 Hector Gros Espiell, a UN Special
Rapporteur, addressed the meaning of ‘colonial and alien domination’ in his 1980 report
on self-determination and seems to give self-determination a more expansive view:
'Colonial and alien domination' means any kind of domination, whatever form it may take, which the people concerned freely regards as such. It entails denial of the right to self-determination, to a people possessing that right, by an external, alien source. Conversely, colonial and alien domination does not exist where a people lives freely and voluntarily under the legal order of a State, whose territorial integrity must be respected, provided it is real and not merely a legal fiction, and in this case there is no right of secession. 50
And again
The United Nations has established the right of self-determination as a right of peoples under colonial and alien domination. The right des not apply to peoples already organized in the form of a State which are not under colonial and alien domination, since resolution 1514(XV) and other United Nations instruments condemn any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country. If,
48 Emphasis mine. 49 Umozurite, Self-Determination in International Law, 72. 50 Hectar Gros Espiell, Implementation of Unied Nations Resolutions Relating to the Right of Peoples under Colonial and Alien Domination to Self-Determination. A Study Prepared by a Special Rapporteur (New York: United Nations, 1981) [E/CN.4/Sub.2/405] Here, para. 37 (1977) and para. 42 (1978, vol.1 ), quoted in Pomerance, Self-Determination in Law and Practice at 14.
21 however, beneath the guise of ostensible national unity, colonial and alien domination does in fact exist, whatever legal formula may be used in an attempt to conceal it, the right of the subject people concerned cannot be disregarded without international law being violated.51
Micha Pomerance, an international law scholar, comments that Gros Espiell’s attempt to
delineate the boundaries around self-determination, territorial integrity and the term
peoples results in what is at best a “question begging definition.”52 Despite efforts to
bring self-determination to the status of a human right, the progress from the days of
Wilson are “not readily discernable.” 53 She argues,
[in Wilson’s time] self-determination could be denied by telling an aspiring 'self': "You are not really a 'people' but only a 'minority'." (e.g. within Czechoslovakia). Today, the potential claimants (Biafrans, Katangans, West New Guineas, Southern Sudanese, etc) are told, rather: "You are not really under 'colonial' or 'alien' rule at all; you are part of a non-colonial 'self' entitled to its territorial integrity." 54
Indeed, as will be discussed in the next chapter, defining the ‘self’ who is properly vested
with self-determination is one of the most challenging and talked about aspects of a
human right to self-determination.
The Declaration on Colonial Peoples is a document of “historic importance” and
is commonly regarded as representing “one of the most significant contributions the
United Nations has made to developing the concept of the right to self-determination.” 55
Unfortunately for indigenous peoples, of the seven articles comprising the 1960
Declaration on Colonial Peoples, three intentionally exclude indigenous and other
peoples who share territory with their colonizers; the salt-water thesis had become the
“law” of the United Nations. The title of the Declaration itself reveals the resolution of
other debates in the years leading up to the final draft of the Declaration on Colonial
Peoples. The Declaration is concerned with the ‘Granting of Independence to Colonial
Countries and Peoples,’ stressing independence as the goal of both decolonization and 51 Ibid. 52 Ibid., 15. 53 Ibid. 54 Ibid. 55 Critescu, para. 41.
22 self-determination. This independence is granted to ‘Colonial Countries and Peoples’ by
acknowledging that territoriality-based self-determination (country) is as acceptable as
ethnic or culturally-based self-determination (peoples). This important distinction will be
discussed in Chapter 2, as will the preference of UN practice towards recognizing
territorially based self-determination.
In 1970, General Assembly Resolution 2625, the Declaration on Principles of
International Law Concerning Friendly Relations and Co-Operation Among States in
Accordance with the Charter of the United Nations,56 further entrenched the limitations
on the exercise of the right of self-determination codified in Resolution 1541 and in the
Declaration on Colonial Peoples. After affirming that “all peoples have the right to self-
determination,” the Declaration on Friendly Relations states that
Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed, or colour.
Every State shall refrain from any action aimed at the partial or total disruption of the national unity and territorial integrity of any other State or country. 57
According to the Declaration on Friendly Relations, self-determination cannot be
regarded as authorizing the dismemberment or amputation of sovereign states
“conducting themselves in compliance with the principle of equal rights and self-
determination of peoples.”
In addition to reaffirming the primacy of ‘territorial integrity’ over self-
determination for peoples sharing the same territory, the Declaration on Friendly
56 GA Resolution 2625 (XXV) of 24 October 1970. 57 Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, G.A. Res. 2625 (XXV), Annex, 25 UN GAOR, Supp. (No. 28), UN Dec. A/5217 (1970), at 121.
23 Relations also speaks against external interference in domestic affairs. Sharon Venne 58
notes that this is a re-entrenchment of customary international law. Importantly in
relation to self-determination, however, the Declaration on Friendly Relations
discourages outside involvement in ‘domestic’ struggles for self-determination. For
indigenous peoples, this adds to the incorrect but common argument that the struggles for
self-determination of peoples sharing a territory with states are purely domestic affairs.
58 Sharon Venn, Our Elders Understand Our Rights: Evolving International Law Regarding Indigenous Rights (Penticton, BC: Theytus Books Ltd, 1998), 74. [hereafter Venne, Our Elders]
24
CHAPTER 2: EXPANDING THE SCOPE OF SELF-DETERMINATION
Introduction
The conclusion reached in the previous chapter, that the definition of self-determination
at the United Nations carefully excludes indigenous peoples, is certainly not a novel
reading of UN doctrine. Though frequently arbitrary and influenced by the expediencies
of the moment,1 United Nations practice surrounding self-determination, including
defining the content and subject of the right, has been consistent on certain central tenets.
These tenets, preserving territorial integrity; granting self-determination only to
dependent, external colonial peoples; and defining the subject of self-determination based
on territory rather than ethnic criteria; have contributed to the exclusion of indigenous
peoples from a UN recognized right to self-determination. Some scholars, however, are
looking beyond UN practice to the basic principle of self-determination and its
accompanying right. They recognize that as a moral ideal and a tenet of international
human rights law, self-determination offers a promise of choice and participation that UN
practice and state endorsed restrictions have stifled. The right of self-determination,
however, is too fundamental a human right, and its suppression has the potential to cause
too much violence, to accept a limited UN vision as the fullest attainable expression of
self-determination within the international community of peoples.
This chapter will look at how international law and human rights scholars
interpret United Nations doctrine on self-determination. It will also consider the impact
of their arguments on indigenous claims to self-determination. The discussion will show
that the links between self-determination and independence made at the United Nations
significantly narrow the range of options available within the right and make the
universal application of self-determination seem impossible. Fortunately for indigenous
1 Micha Pomerance, for example, in Self-Determination in Law and Practice argues that the UN has not made decisions regarding self-determination on a consistent basis but that their criteria seem to be arbitrary and “based on standards of expediency tailored to the individual case.” (72) Pomerance states further that balancing self-determination with other human rights depends on “whose territorial integrity is pitted against whose self-determination.” (44) The authors of the Québec Study state that despite the criteria laid down in Resolution 1541 (XV), “their application has been uneven, evidently dictated by political and contingent considerations, the only conclusion that can be drawn from an analysis of the practice is that the General Assembly reserves the right to classify: a colonial people is any people defined as such by the General Assembly” on the recommendation of the Decolonization Committee [Québec Study, para. 3.06].
25 peoples, \ scholars who go beyond merely describing UN understandings allow the right
of self-determination to regain its place as a universal right whose application must be
based on historical context.
United Nations practice and policy
The Content of Self-determination
Central to the debate – which we do not claim to resolve – on the scope of the principle of the right to self-determination is the fact that, though there is no doubt that “all peoples have the right to self-determination,” there is no universally accepted definition of the word ‘peoples’ nor of the notion of self-determination. 2
This quote from a study on the international legality of Québec secession focuses on two
of the most contentious aspects of the right to self-determination: what is included in the
right, or content, and who can access the contents of the right, or subject. Hurst Hannum,
a specialist in international human rights law, argues that United Nations practice has
shown that “full independence is considered to be the normal result of the exercise of
self-determination.”3
The UN’s preference for independent statehood as the proper content of the right
of self-determination, however, is tempered by the organizations zealous protection of the
territorial integrity of member states. Documents such as the Declaration on Colonial
Peoples and the Declaration on Friendly Relations simultaneously guarantee self-
determination and protect the territorial integrity of existing states.4 The international
community actively supports the concept of territorial integrity because it underlies the
concept of state sovereignty which itself serves as “the cornerstone of international
rhetoric about state independence and freedom of action.”5 Hannum asserts that the
2 Québec Study, para. 3.04. 3 Hannum, Autonomy, Sovereignty, and Self-Determination, 39. 4 Most notably in 1960s Resolutions 1541 and 1514. See Chapter 1. 5 Hannum, Autonomy, Sovereignty, and Self-Determination, 14. Hannum does not view state sovereignty to be absolute. On pages 14-15, he says that to the extent that sovereignty has come to mean an inherent quality of states that “makes it impossible for them to be subjected to law, it is a false doctrine which the facts of international relations do not support.” [quoted from JL Brierly, The Law of nations (Oxford: Clarendon Press, 4tn edition. 1949, p. 48-49.] Nevertheless, he does not support international encroachment into a state’s sovereignty in order to promote sovereignty for indigenous peoples.
26 international community generally accepts sovereignty as an attribute of statehood and
states as the proper holders of sovereignty. 6
Sovereign states, therefore, are entitled to the protection of their territorial
integrity even in cases where territorial integrity and self-determination come into
conflict. When the people seeking self-determination share land within a state, achieving
independence (or realizing self-determination) would require seceding from the state,
disrupting its territorial integrity, and implicitly threatening its sovereignty. Hannum
argues that “constant state practice and the weight of authority require the conclusion that
such a right [to secede] does not exist.”7 Benyamin Neuberger, who has written
extensively on colonialism, nationalism, and ethnicity in Africa, agrees with Hannum that
the drafters of the United Nations Charter never intended it to support a right of secession
and that United Nations practice during decolonization in Africa supports this
conclusion. 8 Almost without question, nations within colonial territories as well as
nations across colonial territories (such as the Somali people9) were denied a right to self-
determination.
Rather than sanction a right to secede, Hannum argues that the UN has chosen to
reconcile the conflict between self-determination and territorial integrity by reserving
self-determination to two particular applications: the right to freedom for a colonial
people, or external self-determination, and the independence of a state’s population from
foreign intervention, or internal self-determination. 10 Neuberger agrees that the content
of self-determination can be divided into internal and external but departs from Hannum
by arguing that there is no inherent link between independence and self-determination.
6 Hannum, Autonomy, Sovereignty, and Self-Determination, 15. 7 Ibid., 49. 8 Neuberger, National Self-Determination, 70. 9 See Sureda, United Nations Practice, pages 203-211. Sureda notes that Somalia has “consistently contended that the policy of existing borders [in Africa] is one contrary to the self-determination of Somali peoples.” (203) Somalia thus considers illegal all treaties dividing their lands and considers Ethiopian and Kenya as much colonizers as any other. Yet self-determination claims made along these lines are not accepted widely because “claims to revise treaties on the basis of self-determination have only been successful when put forward by a non-self-governing territory and against a [European] colonial power.” (203) 10 Hannum, Autonomy, Sovereignty, and Self-Determination, 49.
27
For Neuberger, external self-determination is true independence for a state, e.g.
Poland, or an international recognition of peoplehood, e.g. the Basques.11 Expanding on
Hannum’s definition of the sort of internal self-determination accepted by the
international community (the absence of foreign influence and control), Neuberger argues
that internal self-determination can be autonomy or federalism for a distinct people
within a state (a democratic state like Québec in Canada or a non-democratic state like
the Georgians in the former USSR) or democracy in a homogeneous state (like
Holland).12 For Neuberger, ‘grand self-determination’ entails true internationally
recognized sovereignty and ‘small self-determination’ deals with the internal structure
and politics of the state.13 These two facets of self-determination are, to him, separate
and distinct.
The subject of self-determination
Neuberger’s distinctions, internal and external self-determination and ‘grand’ and ‘small’
self-determination, are useful because they consider other forms of self-determination
besides independent statehood. When self-determination is tied with territory and
sovereign statehood, as it is under Hannum’s model, the subject of self-determination
must be territorially based. The best examples of the United Nation’s tendency to vest
self-determination in a territorial self are found in the decolonization of Africa beginning
in the 1960s. Neuberger notes that in Africa, the national self “is most frequently defined
as the former colony in its colonial boundaries.”14 Nadesan Satyendra, an academic and
outspoken supporter of the Tamil struggle in Sri Lanka, states that when Africa was
decolonized,
the colonial rulers also left behind them artificial territorial boundaries - boundaries which had everything to do with securing their hold over the territories that they had conquered and which had little to do with securing the
11 Neuberger, National Self-Determination, 61. 12 Ibid., 6. 13 Ibid., 8. 14 Ibid., 21 quoting from John Plamenatz, On Alien Rule and Self-Government. (London: Longmans, 1960), 21.
28
national identities of the peoples on whom they had imposed their rule.15
Neuberger concurs and, using South Africa as an example, notes that ethnic homelands
(called Bantustans) are “not regarded as legitimate national selves for self-
determination.”16 After reviewing the response of the Organization of African Unity
(OAU) to decolonization, Neuberger concludes that this same preference holds true for
the rest of Africa; the OAS, like the UN, has fully endorsed colonial state boundaries and
withheld support from movements to break up such units.17 This preference for colonial
boundaries rather than ethnic groups is also emphasized by language: 10 million Ibos
who possess a well defined territory are a tribe while a few hundred Basques are
considered a nation. 18
Umozurike Oji Umozurike, who has written an authoritative work on the African
Charter of Human and Peoples Rights,19 joins Neuberger in arguing that national or
ethnic units as well as territorial units are the proper subjects of self-determination.
Peoples and states, rather than merely ‘states and state populations,’ can realize self-
determination just in different ways. Because Umozurike believes the right can be
exercised through various forms of self-government, local autonomy or other forms of
participation in government, self-determination is relevant to externally and internally
dependent peoples. Umozurike riles against definitions of self-determination that restrict
its application to nations only and omit peoples who are part of states. Assuming that
these peoples may want to secede is at best premature, he says; they may only wish to
practice self-determination internally. 20
Due to the prevalence of the territorially based model of self-determination and
the strength of nation-states, the conflicts caused when nations seek internal self-
15 Nadesan Satyendra, “The Fourth World – Nations without a State.” Available from the Tamil Nation Website <http://www.tamilnation.org/fourthworld.htm> [September 2000] 16 Neuberger, National Self-Determination, 22. 17 Ibid., 23. 18 Ibid., 23-4. 19 See Umozurike Oji Umozuirke, "The African Charter on Human and Peoples' Rights", American Journal of International Law, Vol. 77 (1983): 902-112 and Umozurike Oji Umozurike, The African Charter on Human and Peoples Rights (The Hague: Kluwer Law International, 1997). Umozurike is also a former member of the African Commission. 20 Umozurike Umozurike Oji, Self-Determination in International , 194-195.
29 determination are viewed as domestic issues. Africa once again serves as an excellent
example. As Neuberger noted, the claims of nations within colonial territorial boundaries
in Africa were largely ignored dur ing the decolonization process. Many of the conflicts
in Africa today are a result of nations seeking a greater degree of self-determination
within a larger territorially based state. By linking self-determination with independence,
the types of internal self-determination discussed by Hannum, Neuberger, and Umozurike
are not pursued by the UN under the rubric of self-determination or decolonization.
Instead, matters of ‘internal self-determination’ for nations and peoples within states are
usually deemed ‘domestic matters’ beyond UN purview. Cristescu notes that at the
discussions of the 6th Committee (Legal) of the General Assembly at its 20th Session, “the
view was expressed that the formulation by the Committee of rules on the secession of
peoples from the State in which it was living, would constitute interference in the
domestic affairs of states.” 21 Bernard Nietschmann of the University of California at
Berkley notes that today, when nations sharing land with states “attempt to defend or
regain territory or sovereignty usurped by a settler state, these conflicts are labeled
‘domestic’ by the international community.”22 Umozurike argues that conflicts like these
and “situation[s] involving the international legal principle of self-determination cannot
be excluded from the jurisdiction of the UN by a claim of domestic jurisdiction.”23
Keenly aware of the situation of Fourth World peoples and jealous of their
domestic jurisdiction, the states that make up the United Nations and legislate its policy
have been careful to interpret self-determination in a way that overlooks internal
struggles for self-determination of peoples and nations. The UN has supported the
political rights of individuals to participate in democratic governance systems but done
little to address the communal claim made by a nation, which is a group of individuals.
In one sense, by restricting self-determination to geographically distinct colonies and
21 Cristescu Study, para. 71 quoted from the Official Records of the General Assemply, 21st session, annexes, agenda items 90& 94, doc A/6165, paras. 56-61. 22Bernard Nietschmann, “Fourth World Nations: Conflicts and Alternatives.” Center For World Indigenous Studies, 1995. Available from <http://www.tamilnation.org/fourthworld/bernard.htm> [August 2000]. See also, F.A. Vallet, "The Competence of the United Nations General Assembly," Recueil des Cours 97 (1959), quoted in Umozurike, Self-Determination in International Law, 91. Vallet argues that the United Nations should use its authority and add the denial of internal self-determination to the list of transgressions for which it is willing to impinge on domestic jurisdiction. 23 Umozurike, Self-Determination in International Law, 194-195.
30 independence, the UN has overly simplified the difficult questions of subject and content
that are part of a wider application of self-determination. Were the UN to turn its
attention to addressing the problem of internal self-determination for what are frequently
called Fourth World nations, nations within states, it would find itself without a
definition of subject or content. How does one decide who receives internal or external
self-determination or none at all? Who is a people and who is a nation?
Application to indigenous peoples
To highlight the complexity of this problem, let’s look at how the claim of indigenous
peoples to the right of self-determination fairs under the definitions offered thus far. For
Hurst Hannum, self-determination is merely a tool through which decolonization of
geographically distinct territories can occur. External self-determination means
decolonization via the salt-water thesis and necessitates statehood; internal self-
determination means freedom from foreign influence, most notably after decolonization
has been achieved. Indigenous peoples, who do not live in dependant territories or
colonies, are thus excluded from self-determination. 24
Hannum also argues that the United Nations’ focus on independence has
encouraged state governments to equate all claims for self-determination with
independence and secession. Making this link in domestic negotiations “may inhibit the
resolution of claims that are not as wholly incompatible as they may first appear.”25
Given this tendency, Hannum argues that as indigenous peoples argue for rights, they
should use other, less emotionally volatile terms, such as self-governance. “True
meaningful self-government or autonomy does not threaten the established international
law norms” and meets most indigenous needs.26 Through a ‘right to autonomy,’
indigenous peoples may be able to access some degree of internal self-determination, but
Hannum does not question the ultimate sovereignty of the state nor does he see any
‘norm’ or ‘right’ of self-determination that would permit action infringing on the
territorial integrity and sovereignty of the state.
24 Hurst Hannum, American Society of International Law: Proceedings of the American society of International Law at its 75th annual meeting (Washington: 1985), 197. Hereafter, Hannum, ASIL Conf 1985. 25 Hannum, Autonomy, Sovereignty, and Self-Determination, 96. 26 Hannum, ASIL Conf 1985, 198.
31 Indigenous peoples seeking recognition of their right to self-determination fare
better under Umozurike’s vision of internal self-determination, but his particular use of
terms like state, nations, and peoples muddles the application of this limited right of self-
determination, roughly paralleling what Neuberger calls ‘small’ self-determination.
Nations for Umozurike seem to be states and externally dependant territories, states are
non-dependant political units, and peoples are minorities within states.27 How then do
the rights of peoples and nations differ? Indigenous peoples would most likely be
excluded from external self-determination and could find themselves with only a
minimum of internal self-determination depend ing on the definitions given to these
terms.
The highly contested definition of self-determination, minorities, and peoples
contributes to the confusion. The meanings attached to some terms, however, pose a real
problem for indigenous peoples, especially because the international community has not
recognized the peoplehood of what the UN refers to as ‘indigenous populations.’
Gudmunder Alfredsson, a human rights scholar at the Raoul Wallenberg Institute of
Human Rights and Humanitarian Law, offers five possible meanings for self-
determination: 28
1. the right of a people to determine its international status, including the right to independence, sometimes referred to as external self-determination;
2. the right of a state population to determine the form of government and to participate in government, sometimes extended to include democratization or majority rule and sometimes called internal self-determination;
3. the right of a state to territorial integrity and non-violation of its boundaries, and to govern its internal affairs without external interference;
4. the right of a minority within or even across state lines to be free from non-discrimination, but possibly the right to cultural, educational, social and economic autonomy for the preservation of group ident ities.
27 On pages 194-195, Umozurike objects to definitions of self-determination that restrict it to nations only and not peoples who are part of states. This differentiation between nations and peoples seems to allow nations to be peoples but not peoples to be nations. 28 Gunmunder Alfredsson, “International Law, International Organizations, and Indigenous Peoples,” Journal of International Affairs 113 (1982): 114.
32
Indigenous peoples might want to have the right to their land added to this list of special rights; and
5. the right of a state, especially claimed by the developing countries, to cultural, social and economic development.
The examples of what self-determination “can mean and [has] been used to mean”
offered by Alfredsson do not sufficiently address the reality of peoples and nations within
states. Alfredsson appears to equate ‘people’ with external self-determination, ‘state
populations’ with internal self-determination, ‘states’ with protection of territorial
integrity, and ‘minority populations within or…across state lines’ with special rights.
Notably, indigenous peoples are included as minorities. As such, they may be able to
access a degree of internal self-determination not external self-determination and are
problematically and inaccurately grouped under minorities.29 The reasons Alfredsson
offers for this denial that are similar to those offered by the other scholars: the territorial
integrity and sovereignty of the states that run international forums and dictate their laws
cannot be violated.
Self-determination for all peoples
There is something deeply morally unsatisfactory in asserting that indigenous peoples do
not have a right to self-determination because of the power and strength of states.
Certainly scholars cannot be faulted for presenting the reality at the United Nations.
Indeed, it is the biased ‘reality’ of UN doctrine that creates this moral twitch, a feeling of
‘that’s not right’ that is compounded by the UN’s apparent lack of concern for the
historical side of the right to self-determination. Leaving state sovereignty and territorial
integrity unquestioned, in essence letting states “have their way,” may prove expedient
but there can be no peace without justice and too often expediency seems to leave the
search for justice behind as a uncompleted project.
In order to broaden the reach of the subject of self-determination, and attempt to
‘right’ the situation, an alternative to UN endorsed limitations on the content of self-
determination must be found. Practically, a more expansive vision of self-determination
and its application will exacerbate the problems of conflicting claims, especially for 29 The identification of indigenous peoples as minorities will be discussed below.
33 peoples sharing a territory. Any broad formulation of self-determination must thus
address how competing claims of self-determination would be mediated and balanced.
The series of authors presented in the next section offer understandings of ‘peoples’ and
‘self-determination’ that allow the right to be universally applied while addressing the
conflicts brought about by the commonly accepted meanings given to these contentious
terms. Taken together these authors show that working from the basic and essential
human rights principle of self-determination rather than a UN defined and mediated
concept provides a moral and, importantly for indigenous peoples, a historical base for
realizing the right to self-determination.
The Québec Study: Self-determination for all peoples
In 1991 when the Canadian province of Québec prepared for its secession referendum,
the Belange-Campeau Commission hired five renowned international law scholars30 to
investigate the international standing of Québec should it successfully secede. In their
report, entitled “The Territorial Integrity of Québec in the Event of the Attainment of
Sovereignty,” the scholars return to the most basic meaning of self-determination. At the
heart of the principle of self-determination, they say, lies the ability to exercise a
choice.31
There can be no doubt as to [the] content of [self-determination]. It implies that every people has the right to participate in the definition of its political, economic, social and cultural future.32
It is equally clear, they argue, that ‘all peoples have the right to self-determination.’ The
problem lies in defining both ‘the people’ and the precise content of self-determination
or, said another way, the type of participation a people are entitled to have. The study
agrees with the authors mentioned previously in this chapter that “international practice 30 The five scholars and their credentials (current as of 1991when the study was written) are Thomas M. Franck, Becker Professor, School of Law, Director, Center for International Studies, New York University; Rosalyn Higgins, Q.C., Professor, London School of Economics, member of the Human Rights Commission; Alain Pellet, Professor of Public Law at the University of Paris X - Nanterre and at the Paris Institut d'Études politiques, member of the International Law Commission of the United Nations; Malcolm N. Shaw, Professor, Faculty of Law, University of Leicester; and Christian Tomuschat, Professor, Institut für Völkerrecht, Bonn University, President of the International Law Commission of the United Nations. 31 Québec Study, 1.17. 32 Ibid., 1.20.
34 since 1945 has applied the principle predominantly, if not exclusively, in favor of [UN
defined] colonial peoples.”33 The Study also concurs that United Nations practice has
equated self-determination with independence and statehood. The study recognizes that
the generalization of the right to self-determination understood to mean the right of a people to found a State would have a profoundly destabilizing effect, which is obviously inconceivable for an international community comprised first and foremost of sovereign States.34 It can be concluded that the view that all peoples in the sociological sense are entitled under international law in the last resort to create independent States is clearly unacceptable as a matter of practice.35
And adds but restricting the notion of peoples is not the only rational legal response to this practical objection. 36
This then is the intriguing part of the Study’s argument on the right of self-determination.
The United Nations has worked itself into a corner: all peoples are entitled to self-
determination but the content of self-determination has been equated with independent
statehood. An independent state for each people is “unacceptable as a matter of practice”
and would seriously disrupt the territorial integrity of existing states, so ‘peoples’ has
been limited to geographically distinct colonial peoples.
The Québec Study argues that limiting the definition of peoples is not the only
solution to this practical and theoretical bind. The right to self-determination, the Study
argues, can retain real substance without being limited to a particular category of peoples
by realizing that peoples’ rights embody “a category, not a definition.” 37 This means
33 Ibid., 3.05. 34 Ibid., 3.07. The Study notes that for examples, see Lee C. Buchheit, Secession: The Legitimacy of Self-Determination (Yale U.P.:New-Haven, 1978), 20-30, or Alexis Heraclides, The Self-Determination of Minorities in International Politics (Frank Cass, 1991), 28. It is interesting to note that Buchheit’s work seems to link the legitimacy of self-determination with the legitimacy of secession, an extension of the equation of self-determination with statehood and secession that the UN encourages and that this thesis is trying to argue against. 35 Québec Study, 3.07, quoting Malcolm N. Shaw, "The Definition of Minorities in International Law", Israel Yearbook on Human Rights (1991), 19. 36 Ibid. 37 Ibid., quoting from James Crawford, "The Rights of Peoples: Some Conclusions" in J. Crawford, ed., The Rights of Peoples (Clarendon Press, Oxford, 1988), 169-170. See also, the Study notes, Hurst Hannum,
35 that all people do indeed possess the right to self-determination, that is all peoples are
able to access the category of rights called peoples’ rights. The consequences of having
this right, however, will not be the same for all peoples. Some may receive complete
territorial independence while others may achieve a sort of ‘internal self-determination’
similar to that proposed by Umozurike or even special ‘minority rights’ à la Alfredsson.
The Québec study highlights not only the importance of context but also the by-product
of a contextual understanding of self-determination: it allows the right to be applied to all
peoples unequivocally.
Anaya: The norm of self-determination and the substance-remedy distinction
A Purepecha/Apache professor of law specializing in indigenous issues, S. James
Anaya’s analysis of self-determination captures the universal application asserted by the
Québec Study and reaffirms the importance of history in assessing self-determination
claims. Importantly for indigenous peoples, Anaya also begins his reasoning from the
moral imperative of the norm of self-determination, not from UN doctrine. His analysis
describes how a contextually based vision of self-determination can work in practice.
Anaya’s view of self-determination does not focus on the words of international
instruments, which he calls normatively problematic and inconsistent.38 He turns rather
to the “common ground of normative precepts and patterns of behavior that are fairly
associated with concepts of self-determination.”39 After historically tracing what he calls
the international norm of self-determination and finding it to be “grounded in the values
of freedom and equality” and “applying in favor of human beings in regard to the
institutions of government under which they live,” Anaya concludes that self-
determination entails an accepted standard of governmental legitimacy. 40 Though
models of government legitimacy vary over time and place, at any particular point in
time, international actors share “a nexus of opinion and behavior about the minimum
Autonomy, Sovereignty, and Self-Determination: The Accommodation of Conflicting Rights (University of Pennsylvania Press, 1990) at 74. 38 S. James Anaya, “A Contemporary Definition of the International Norm of Self-Determination” Transnational Law and Contemporary Problems 3 (1993): 133. Hereafter, Anaya, Norm of Self-Determination. 39 Ibid., 133. 40 Ibid., 143.
36 conditions of human freedom and equality for the constitution and functioning of
government.”41 The content of the international norm of self-determination lies in this
nexus.42
A scholar of UN thought on self-determination, Anaya fully acknowledges that
the norm has been used most prominently in the modern international law system as the
basis for decolonization. 43 He argues that these origins in the decolonization discourse
and the United Nations’ linkage of self-determination with independence bring about a
misplaced focus on the territorial/statehood aspect of the term and contribute to a
damaging confusion between two distinct aspects of self-determination: the substance of
the norm and the remedial prescriptions used to alleviate violations of the norm.
Understanding the important differences between these two aspects of self-determination
rectifies the problematic linkage of self-determination with independence.
The substantive content of self-determination is made up of two distinct aspects –
a constitutive aspect and an ongoing aspect.44 Derived from the core values of freedom
and equality of persons, the constitutive aspect of self-determination consists of the
“episodic procedures by which the governing institutional order comes about.”45 This
aspect of self-determination describes the formation of the governing structure, for
example the drafting of a constitution or the establishment of a monarchy. The second
aspect of self-determination is the on-going aspect which “applies continuously to any
governing structure and enjoins the form, content and functioning of the governing order
itself.”46 Taken together, these two aspects account for the entire substance of self-
determination: meaningful participation in the formation of a governing system and
meaningful participation in the on-going functioning of that system. These aspects also
41 Ibid. Anaya’s reasoning on this point is similar to Buergenthal’s regarding the international consensus over ‘gross violations’ of human rights. See the text above, where Buergenthal’s ideas are sourced at “Codification and Implementation of International Human Rights,” in Human Dignity: The Internationalization of Human Rights: Essays Based on an Aspen Institute Workshop, edited by Alice H. Henkin, 15-22, (New York: Aspen Institute for Humanistic Studies, 1979). 42 Anaya, Norm of Self-Determination, 143. 43 Ibid. 44 Ibid., 145. 45 Ibid., see also 145-150. 46 Ibid., see also 151-157.
37 work together to allow for constitutive change on a continuing basis.47
The decolonization movement at the United Nations is an ideal example of the
interaction between the substantive content of self-determination, made up of constitutive
and on-going parts, and the other distinctive part of self-determination identified by
Anaya: remedial prescriptions. After World War II, the interna tional community as a
whole came to realize that the colonial regimes violated the substance of the right to self-
determination and decided that granting statehood to former colonies was the appropriate
remedial prescription to address the violation of self-determination inherent in
colonialism.48 A core element of Anaya’s vision is that particular prescriptions to remedy
self-determination violations, in this case statehood, are not part of the substance of self-
determination; other remedies are possible. The possession of the right of self-
determination does not guarantee the remedy of statehood.49
Anaya argues that in an increasingly interconnected and interrelated world, the
remedial aspect of self-determination is vital. The right of self-determination is far richer
than merely a claim to statehood. 50 It both entitles individuals or groups to participate in
the constitutive development or on-going changes of the institutional order under which
they find themselves and, because it is a norm of interna tional law, also enjoins the
governmental institutional order to
be one under which individuals and groups may live and develop freely on a continuous basis…Self-determination includes the right of cultural groupings to the political institutions necessary to allow them to exist and develop
47 For more on self-determination as a continuing dynamic, see Erica-Irene Daes, “Discrimination Against Indigenous Peoples: Explanatory note concerning the draft declaration on the rights of indigenous peoples.” [E/CN.4/Sub.2/1993/26/Add.1], para. 22 and Jordan J. Paust, "Self-Determination: A Definitional Focus" in Yonah Alexander and Robert Friedlander, Self-Determination: National, Regional And Global Deminsions. Westview Special Studies In National And International Terrorism. Boulder, Co: 1980 (Westview Press, Inc.) at 12. 48 Anaya, Norm of Self-Determination, 157. See below for a further discussion of the relationship between self-determination and colonization. 49 Ibid., 151-157. 50 See, for example, Anaya himself in “The Indigenous Are "Peoples": A Reality And A Challenge,” available at < http://nativeamericas.aip.cornell.edu/old/Last%20Words/last%20words.html> “To understand self-determination as concerned only with narrowly defined, mutually exclusive "peoples" is to diminish the relevance of self-determination values in a world that is in fact evolving differently. Although the history of the world is both of integration and disintegration, the overriding trend appears now to be one of enhanced interconnectedness. This observation does not diminish the value of diverse cultures or local authority, but rather supports the fact of increasing linkages, and interdependencies among people, economies, and spheres of power.”
38
freely according to their distinctive characteristics.51 Because of the important distinction between the substance of self-determination and the
remedial prescriptions that may follow a violation of the substance of the norm, the
definition of peoples, i.e of who is entitled to self-determination, need not be narrow.
“All peoples” have the right to self-determination, but peoples are only entitled to a self-
determination remedy if the norm has been violated and the remedies they are able to
access are appropriate to the violation. 52 Self-determination claims must thus be judged
on a case-by-case basis so that violations, if any, can be detected and appropriate
remedies can be devised.
A framework for evaluating group demands
Once violations of the norm of self-determination are linked to remedies, and self-
determination and independence are disconnected, Anaya’s vision can provide a
framework for evaluating “group demands and promoting peaceful solutions in concrete
situations.”53 The first question in Anaya’s framework is “Has there been a violation of
the international norm of self-determination?” This inquiry, Anaya says, has two parts.
Has there been a violation of self-determination in its constitutive aspect?
Recall that the constitutive aspect of self-determination dealt with meaningful
participation in the formation of the structures and institutions of government. For this
inquiry, Anaya notes that prior sovereignty is not as important as whether the peoples
holding that sovereignty were consulted in a meaningful manner when the government in
question was formulated.54 Responding to this question requires historical study. If such
study reveals a violation, the further in the past it occurred, the less weight the violation
should be given. 55 However, this distance back in time is counteracted by the “degree to
which victims or their progeny remain differentiated from others by inequitable
39 conditions traceable to the past wrong or have persisted in protesting the violation.” 56
The present day status of the claimants thus contributes to a judgment on the possible
violation of the constitutive aspect of self-determination.
Is there a violation of self-determination in its on-going aspect?
This aspect of the substantial content of self-determination focuses entirely on the current
day-to-day participation of the claimant group and their relationship with the form and
functioning of the government under which they live.57 Relevant considerations here are
the degree to which the governmental structures and institutions reflect, protect, promote,
and allow the free development of the group in all spheres of life, including the cultures,
languages, and land use patterns of that group.58
If these two inquiries reveal that there has been an infraction of self-
determination, the next phase of the investigation would be to ascertain the appropriate
remedy. Anaya describes the goal of this process clearly and concisely:
The goal in fashioning an appropriate remedy is to eliminate any existing institutional impediment to the continuous realization of self-determination values and to undo any current inequalities resulting from past deprivations of self-determination. 59
Remedies are particular to the nature of the violation, the peoples involved, and the
existing governmental structure. Statehood may be an option but it is only one of many.
Anaya notes that only in rare cases would secession “be a cure better than the disease.” 60
Under Anaya’s vision of self-determination, a precise definition of peoples
becomes less important than isolating a violation of the norm of self-determination and
constructing a remedy that will best redress the violations’ constitutive and on-going
elements. Like Umozurike, Anaya endorses the involvement of the international
community in locating and rectifying violations of self-determination. “Considerations
of state sovereignty” will regulate the extent to which the international community
becomes involved but Anaya forcefully asserts that where violations of self- 56 Ibid., 163. 57 Ibid. 58 Ibid. 59 Ibid. 60 Ibid.
40 determination linger unchecked by
decision makers in the domestic realm(s), the international community cannot remain idle…Just as international procedures developed to undo the scourge of colonization, international procedures must exist to ensure that groups shown still to be particularly vulnerable to oppressive and unresponsive governance are able to enjoy self-determination. 61
Anaya’s understanding of the norm of self-determination and its content and
subject expand the narrow restrictions on the appropriate subjects of the right to self-
determination imposed by the United Nations. They also clearly and logically separate
independence from the substantive aspects of the right without allowing ‘state
sovereignty,’ ‘territorial integrity,’ or the brute strength of states to dictate the content of
self-determination. Originating from the moral sense of ‘oughtness’ and moving to
practical application of that sense through historical analysis and deliberation, Anaya’s
vision shows that with effort, desire, and compromise, all peoples can realize the right to
self-determination.
61 Ibid., 163-4.
41
CHAPTER 3: THE NORM OF SELF-DETERMINATION AND SOVEREIGN NATIONS
Introduction
When judged against United Nations doctrine or the scholars presented early in Chapter
2, indigenous assertions of self-determination seemed to find very limited recognition.
The United Nations’ understanding of self-determination ruled out indigenous peoples
via the blue water thesis and, though the notion of internal self-determination seemed to
offer some remedy, other scholarly conceptions of self-determination offered little to the
Fourth World, nations within states. Accepting that self-determination is a norm whose
violation requires remedy, however, creates a forum where the “world” of the people,
whether First, Third or Fourth, is irrelevant to judging claims to self-determination.
Certainly, the implementation of any remedies will be affected by the territorial, social
and political situation of the people concerned, and judgments of whether or not self-
determination has been violated will be influenced by the present day condition of the
peoples in question. Yet all peoples have a right not only to access the norm of self-
determination but also to demand that violations of that right be redressed as far as
possible. Nation-states have their own concerns and priorities and indigenous self-
determination must be balanced against other human rights, but international law, the
stability of the First World, and justice require that indigenous demands be addressed.
As an example of a Fourth World nation sharing territory with the First World,
the indigenous peoples of Canada, with whom this study is primarily concerned, have
demanded recognition of their right to self-determination and can demonstrate that they
have suffered violations of the norm. Because indigenous peoples are sovereign nations,
their current status within the Canadian nation-state is not sufficient redress. This
sovereignty distinguishes indigenous peoples from other peoples realizing their right to
self-determination and demands an essential reconception of common understandings of
the very terms ‘state’ and ‘nation.’
42
‘Meaningful participation’ and the importance of history
Imposition of governmental structures without indigenous participation
Though a comprehensive study of historical written and oral materials and testimonies is
certainly beyond the scope of this paper, I feel quite safe in stating that most of the
world’s indigenous peoples, certainly those of the Fourth World, have been denied the
right to self-determination to some degree. The current study is primarily concerned with
the indigenous peoples of Canada, and colonial history clearly evidences violations of the
norm of self-determination in its constitutive aspect. The constitutive aspect of the norm
of self-determination requires meaningful participation in the formation of the structures
and institutions of government. Though some of Canada’s indigenous peoples signed
treaties with the European nations who successfully colonized the lands now know as
Canada, they did not have a direct role in establishing the Westminster model of
parliamentary government in Canada or in the development of the responsible
government that now exists.
I mean no disrespect in this assertion and do not wish to follow the all too
common mistake of underestimating the profound contribution of indigenous peoples to
the formation and development of the nation-states that now claim territory in North
America. To cite one important example of indigenous participation in Canadian state
building, both Robert Williams and Stephan Cornell highlight the importance of what
Cornell has dubbed the “market period” of the North American Encounter Era.1 During
this unique period, which began shortly after Indian-White contact and lasted into the
later half of the eighteenth century, European colonizers sought reciprocal trade with the
indigenous inhabitants of North America rather than outright control of tribal resources.
At a severe numerical disadvantage and still struggling to secure a foothold in an alien
environment, Europeans were forced to adapt to Indian legal traditions. As a result, most
political and economic interactions were conducted in Indian forms. In his excellent text,
Linking Arms Together: American Indian Treaty Visions of Law and Peace, 1600-1800,2
1 Stephan Cornell, The Return of the Native: American Indian Political Resurgence (NY: Oxford University Press, 1988) 2 Robert A. Williams, Linking Arms Together: American Indian Treaty Visions of Law and Peace, 1600-1800 (NY: Oxford UP, 1997) [hereafter, Williams (1997)]. For more on Indians in the Western legal tradition, see Robert A. Williams, The American Indian in Western Legal Thought: The Discourse of Conquest (NY: Oxford University Press, 1990) [hereafter, Williams (1990)]
43 Williams tells the mostly forgotten history of the legal ideas that Indian peoples sought to
apply in their relations with the Western Colonizers. As population dynamics shifted,
expansionist-minded settlers and historians who recorded the phenomenon of “manifest
destiny” often ignored this important and formative period of Native-White contact, and
this omission largely continues into the present.3
The contributions of indigenous peoples and the role they played during Canada’s
formative period, a detailed discussion of which is beyond the scope of this paper, go
beyond the unique legal vision described by Williams. The indigenous peoples of the
lands now claimed by Canada had an essential economic, military, and social impact on
Canada and influenced the drafting of the British North America Acts insofar as these
Acts reflected the reality of a period of time in which indigenous peoples were an
indispensable element. Active indigenous participation in the day-to-day life of the
colonial period and since has helped to shape Canada. Looking specifically at the
Canadian legal context, Brian Slattery4 locates what he calls Canada’s ‘Doctrine of
Aboriginal Rights’ as a unique product of British imperial policy and the interaction
between colonial and indigenous peoples.5 The norm of self-determination’s requirement
of ‘meaningful participation in the formation of the structures and institutions of
government,’ however, requires a level of continuing and realized (not just potential)
involvement that simply was not granted to indigenous peoples.6 Perhaps ironically, the
very term used at the United Nations to define indigenous peoples out of UN recognition
of a right to self-determination best describes this process of exclusion: colonization.
Colonialism, a constitutive denial of a people’s right to self-determination
The Québec Study concludes, like so many others before it, that indigenous peoples do
not have a United Nations recognized right to self-determination because the UN
confines self-determination to colonial peoples and does not categorize peoples within
3 See, for example, Taiaiake Alfred, “Who’s History?” Windspeaker, December 5, 2000. 4 Brian Slattery is an associate professor at Osgoode Hall Law School, York University. He specializes in aboriginal rights and constitutional theory. He is especially known for his conception of the Constitution of Canada that takes into account the distinctive rights of Aboriginal peoples. 5 Brian Slattery, "Understanding Aboriginal Rights" (1987) 66 Canadian Bar Review: 727-783. [hereafter, Slattery, UAR] 6 In nearly all cases, the wording of treaties made between the indigenous and non-indigenous occupants of Canada, never mind the understandings of the indigenous leaders who signed them, have not been honored.
44 states as being in a colonial situation. 7 Though colonialism has been defined in various
ways, a common element in those definitions is domination and exploitation, usually by
an alien (foreign) power. Domination alone can cause violations of the most essential
human rights, including freedom and equality, but colonialism also typically causes a
particular violation of the norm of self-determination. There are many variations of
colonial governing structures that excluded the colonized population. The foreign power
may, for example, establish a governing structure by putting a foreign ‘king’ in place or
even set up a ‘democracy’ while disallowing or devaluing the dominated population’s
vote. When put in place without meaningful participation by the dominated group, these
types of systems deny the colonized peoples’ right to self-determination. They are
denied, to use the words of the United Nations, the right to “freely determine their
political status and freely pursue their social, economic, and cultural development.”8 In
the context of self-determination, it is this suppression of the right to participate that
makes colonialism a violation of the norm of self-determination.
For indigenous peoples, whose current political status is not usually perceived as
a lingering manifestation of colonial policies, history is the best aid to revealing
violations of the norm of self-determination. In Canada, the imposition of the
Westminster model of government over indigenous peoples was an important aspect of
the British colonial regime and one of its most damaging. The United Nations chose to
act on colonial violations of self-determination in territories distinct from their
administering (read: colonial) powers but, as Umozurike highlighted, refused to act in
situations where the colonizer shared a territory with peoples who had their right to self-
7 Though the term ‘colonialism’ is considered a loaded term, I am certainly not alone in holding the opinion that resolution of the “indigenous problematiques” in Canada requires continuing a process of decolonization that would resolve the lingering effects of historical injustice. See, for example, Taiaiake Alfred, Peace, Power, Righteousness (Ontario: Oxford UP, 1999), especially at 83; James Tully, “Reconsidering the BC Treaty Process.” Lecture presented at Speaking Truth to Power, A Treaty Forum, presented by the BC Treaty Commission and the Law Commission of Canada, Vancouver, March 3-4, 2000; Menno Boldt, Leroy Little Bear, and J. Anthony Long, “Federal Indian Policy and Indian Self-government in Canada” in Menno Boldt, Leroy Little Bear, and J. Anthony Long, eds, Pathways to Self-Determination: Canadian Indians and the Canadian State. Buffalo: University of Toronto Press, 1984, at 70; Brian Slattery, "Aboriginal Sovereignty and Imperial Claims," 29 Osgoode Hall Law Journal (1991) where he states that “by automatically accepting the Act of State doctrine [that affirms Crown sovereignty in Canada] without question, today’s courts can become passive instruments of colonial rule and forfeit their moral authority” (691-2). 8 Declaration on the Granting of Independence to Colonial Countries and Peoples, GA Res 1514 (XV), para. 2.
45 determination similarly violated. Rudolph Rÿser of the Center for World Indigenous
Studies notes that the success of UN decolonization has encouraged the view that the
project is complete. Still waiting to be decolonized, however, are indigenous peoples
who are surrounded by nation-states and “who are without influence or control in the
national government.”9 While some indigenous peoples in Africa and the Middle East
have gained political control over nation-states, Rÿser argues that “no legal or political
recourse is offered the indigenous tribal group to determine its own future or govern itself
except at the whim of the controlling nation-state.”10
Challenging the UN’s exclusion of Fourth World nations from decolonization,
Rÿser states that “the denial of the rights of indigenous populations to be economically or
culturally self-determining is comparable to the situation of former colonies.”11 There
are, of course, numerous reasons for the UN’s inaction, many of which have been
discussed elsewhere in this paper. One important reason is the prevailing view that
violations of Canada’s indigenous peoples right to self-determination happened in the
past. However, there are on-going violations of self-determination that are the result of
this un-redressed historical violation.
One example of a current violation is the lack of indigenous economic self-
determination. An important component of the ‘participation’ encompassed within the
norm of self-determination, the ability to be economically self-determining is typically
denied under colonial rule. Without participation in the formation or functioning of
government structures, colonized peoples lost control of resource use and allocation. The
colonizing powers who are now nation-states achieved economic power and stability by
exploiting the resources traditionally controlled and utilized by indigenous peoples. The
continuing exploitation and consumption of the resources on which they depend prevents
indigenous peoples from achieving or maintaining economic self-sufficiency and makes
real self-government virtually impossible.12 In this way, a violation of the constitutive
9 Rudolph Rÿser, “Tribal Political Status: Finding A Place For Indigenous Peoples In The Family Of Nations.” Center For World Indigenous Studies, May 1980. Available from <http://www.cwis.org/fwdp/International/tribstat.txt> [October 2000]. Hereafter, Rÿser, Tribal Political Status. 10 Ibid. 11 Ibid. 12 Ibid.
46 aspect of the norm of self-determination (formative participation) in the form of
colonization contributes to a violation of the norm’s on-going aspect.
Anaya’s framework for evaluating group demands for self-determination
specifically accounts for the proximity in time of the violation. According to his model,
the further in the past the violation occurred, the less weight the violation should be
given. However, this distance back in time is counteracted by the
degree to which victims or their progeny remain differentiated from others by inequitable conditions traceable to the past wrong or [to the degree which they] have persisted in protesting the violation. 13
Again, though it is beyond the scope of this paper to discuss facts and figures in detail,
this definition could be a description of the plight of many of the indigenous peoples
sharing territory with Canada, most of whom are differentiated from the rest of the
Canadian population through over representation in social criteria such as level of
unemployment, incarceration, and community dysfunction or ‘un-wellness.’ The
cumulative effect of Crown legislation designed specifically for indigenous peoples, most
notably the Indian Act, has been responsible for preventing indigenous involvement
within the mainstream economic and political structures of Canada as nations. Crown
policies have endorsed and facilitated land theft, cultural prohibition, reconfiguration of
traditional governance structures, and the forceful acquisition and schooling of children.
The lingering effects of these policies and the continued existence of a governmental
system implemented several hundred years ago without meaningful indigenous
participation serve as the primary causes of the challenges now facing indigenous
communities14 and are on-going aspects of historical violations of the norm of self-
determination.
Indigenous peoples’ inability to determine their own future and govern
themselves keeps them as a dominated people or, as Rÿser says, an “exploited and
externally controlled peoples.”15 The violation of the norm of self-determination in the
case of Fourth World indigenous peoples is thus best summarized as ‘colonization.’
13 Anaya, Norm of Self-Determination, 163. 14 See, for example , the excellent analysis of the Final Report of the Royal Commission on Aboriginal Peoples, available at < http://www.indigenous.bc.ca/rcap.htm> 15 Rudolph Rÿser, Tribal Political Status.
47 Redressing the past violations of the norm of self-determination caused by colonization
and putting an end to on-going violations of that norm are thus the appropriate remedies
for the indigenous peoples of Canada, in other words a process of continued
decolonization.
On-going violations and participation beyond ‘voting’
The current political status of indigenous peoples in Canada and their continuing (and
continuous) protestation of that status attest to the on-going violations of peoples’ right to
self-determination in Canada and to the continuance of a form of internal ‘colonization.’
Any form of colonization or the lingering manifestations of colonial policy require a
remedy of decolonization. Because colonization most profound ly affects governing
structures and resource control, a successful process of decolonization in Canada would
require a fundamental restructuring of the power (political, economic, and social)
relationships within the Canadian state.16 Securing the indigenous vote on election day or
reserving a few seats in parliament for indigenous persons are alone not sufficient
remedies because decolonization requires a far more substantial renewal of the
relationship between Canada’s indigenous and non- indigenous peoples but also because
of the nature of the peoples (sovereign nations) whose rights were violated.
Anaya’s understanding of the norm of self-determination, including its
substantive and remedial aspects, flows from his view that basic human rights include
freedom and equality. Unlike the common usage of self-determination at the United
Nations, his vision has very little to do with territory. Territorial independence for a
people, including independent statehood, may be a remedial prescription for a violation
of the norm of self-determination, but this link with a landbase is not inherent in the norm
itself. When judging violations of the norm of self-determination, Anaya says, prior
sovereignty itself is not as important as the actions of the group who arrived second or
third or fourth: the important question is were the prior occupants denied the right to self-
determination? For indigenous peoples, however, land and sovereignty are at the center
16 For more on colonialism generally, its history and effects, see Discovery.com http://school.discovery.com/homeworkhelp/worldbook/atozhistory/c/124140.html.
48 of claims to self-determination. 17 Indigenous peoples not only seek redress for violations
of their self-determination but also assert their right to self-determination as sovereign
nations. While highlighting the need for justice, this claim to sovereignty also
differentiates indigenous claims to self-determination from those of other groups and
once again brings history to the fore of the indigenous struggle.
In his study on self-determination in Western democracies, Guntram Werther18 compares
the “different dynamics of political change surrounding the self-determination
movements of indigenous peoples who are asserting an aboriginal status claim” to “those
ethno-national groups who ground their self-determination cla im otherwise.”19 Peoples
staking their claim to self-determination based on aboriginal status are consciously
choosing this mode of appeal over other possible options. Why? “It represents their best
hope of achieving self-determination within the First World,” Werther asserts.20 By
arguing for self-determination based on aboriginality, or their status as prior occupants of
now colonized territories,21 indigenous peoples call on their equal international law status
as sovereign nations. In doing so, they distinguish their claims from those of other
ethnonational claimants.22
17 See for example the words of the indigenous representatives as recorded in the Report of the working group established in accordance with Commission on Human Rights resolution 1995/32 [E/CN.4/2000/84] December 1999. 18 Guntram Werther is Associate Professor of International Politics and Director of the Global Research and Development Institute at Western International University. 19 Guntram Werther, Self-Determination in Western Democracies: Aboriginal Politics in a Comparative Perspective (Westport, CT: Greenwood Press, 1992), xi. [hereafter, Werther, Self-Determination in Western Dems] 20 Ibid., 2. 21 Werther consistently uses ‘aboriginal’ and ‘aboriginality’ without intending the connotations the term has particular to Australia or Canada. Rather, on page xxxi, he defines aboriginal as “a concept that was developed in its modern meaning by state-organized colonizing Europeans in order to convey a specific political an economic relationship” between European states and peoples/polities they encountered outside those states. He does not use indigenous because he feels aboriginal better conveys this historic relationship. Throughout this thesis, I have consciously stayed away from the term ‘aboriginal.’ While I agree with Werther’s definition and use of the term, I feel that in the context of this thesis, its connotations of the Canadian doctrine of ‘Aboriginal rights’ are best avoided. I use Werther’s term here and when discussing his ideas with his meaning attached. 22 Michael Levin argues that “the very universalism of ethnicity, however, tends to level the claims that can be made in terms of uniqueness. If each group is unique, what makes one claim special? Linking the
49 Modern western democracies find an indigenous claim to nationhood under
international law hard to ignore because the interaction of equal sovereign nations
(sovereign equality) serves as the basis for the international law system and international
relations. Because this claim is so pervasive and questions the very legitimacy of the
state, First World nations attempt to “define out” the relevance of pre-contact sovereignty
or early treaties and justify the diminution of aboriginal sovereignty. 23 By giving money
to social programs and services or shifting the focus of public debate to occupancy, states
attempt to duck larger sovereignty issues.24 As political scientist Walker Conner notes,
most states are simply unwilling to discuss the very issue indigenous peoples call into
question:
There is a seemingly universal tendency on the part of governmental leaders to make all decisions subject to the implicit or explicit presumption that the political integrity of the sovereign territory – no matter how acquired and no matter how diverse the people who occupy it - is simply incontestable…the presumption that the state is a given and must not be compromised therefore causes governments to resist, if need be with force, any attempt to dismember the state in the name of self-determination. 25
Domestic judicial systems also support the state’s policy of presuming complete
sovereignty and avoiding the issue of indigenous sovereignty. Referencing Guerin v. the
Queen,26 Section 35 of the Constitution Act, 198227 and other judicial holdings, Slattery
concept of aboriginality to ethnicity is one way in which ethnonational claims are strengthened. Aboriginality asserts a unique presence and a historical particularity to cultural differences." In "Ethnicity And Aboriginality: Conclusions" in Michael Levin, ed, Ethnicity and Aboriginality: Case Studies in Ethnonationalism (Toronto: University of Toronto Press, 1993), 169. 23 Werther, Self-Determination in Western Democracies, 14. See also Emer de Vattel, The Law Of Nations or The Principles Of Natural Law [Available from http://www.pixi.com/~kingdom/lawintro.html], Introduction, para 18: “Since men are by nature equal, and their individual rights and obligations the same, as coming equally from nature, Nations, which are composed of men and may be regarded as so many free persons living together in a state of nature, are by nature equal and hold from nature the same obligations and the same rights. Strength or weakness, in this case, counts for nothing. A dwarf is as much a man as a giant is; a small Republic is no less a sovereign State than the most powerful Kingdom.” 24 Ibid.,, 2. James Tully highlighted the government tactic of shifting public debate from sovereignty to occupancy in the context of Canada during a class lecture in the Spring of 2000. 25 Walker Connor, “The Politics of Ethnonationalism,” The Journal of International Affairs 27, no. 1: 12, quoted in Patrick Mecklam in “Ethnonationalsim, Aboriginal Identities and the Law,” in Levin, Michael D. Ethnicity And Aboriginality: Case Studies in Ehnonationalism (Toronto: University Of Toronto Press, 1993), 25. 26 Guerin v. The Queen [1984] 2 S. C. R. 335
50 notes that Canadian courts accept the absolute legislative authority of the Crown and
Aboriginal title as a burden on Crown title without question. Slattery argues that
whenever the validity of the premises that underlie judicial rulings is challenged,
Canadian courts answer such questions in an "artificial and self-serving manner."28
Trying to give the executive branch freedom in the international domain, the court
remains deferential to the "territorial claims advanced by the Crown". 29 Slattery
concludes that, "a Canadian court will ordinarily recognize historical claims officially
advanced by the Crown…as effective to confer sovereignty for domestic purposes."30
Slattery and scholarly acceptance of Crown assertions of sovereignty
The calculated disregard of history and prior aboriginal sovereignty by both the courts
and the governments of First World nations takes away the most potent basis for
aboriginal cla ims from indigenous peoples and intentionally weakens their argument at
the outset. Importantly for indigenous peoples, whose efforts include trying to educate
the public and reorder nation-state priorities, Werther notes that the problematic lack of
dialogue on sovereignty goes even deeper than state (government) or state sanctioned
(court) action. When scholars and legal experts considering aboriginal claims
unequivocally accept the First World’s claim to sovereignty, the foundation of the
governing structures and institutions of the state are left unquestioned – and states are
reassured that ethnic claims can be ignored or dealt with under the rubric of
‘multiculturalism’.31 In fact, two articles by Canadian legal scholar Brian Slattery, one
published in 1997 and another in 1991, highlight both the problems of scholarly
adherence to the official state position and the results of a more historical examination.
In his 1997 article, entitled "Understanding Aboriginal Rights," Slattery
investigates the development of common law doctrines surrounding indigenous peoples.
Slattery begins the piece by stating that he will accept, without question, the perspective
of the Canadian court, including ultimate Crown sovereignty and title and the absolute
27 Schedule B of the Canada Act, c.11 (U.K.) 28 Slattery, UAR, 735. 29 Ibid. 30 Ibid.,, 735-6. 31 The state effort to domesticate the indigenous struggle for self-determination will be discussed further below.
51 legislative authority of the Crown. 32 Though he does acknowledge, as quoted above, that
the Canadian court answers such questions in an "artificial and self-serving manner,"33
Slattery develops the rest of his article by accepting Crown claims at face value. The
result is the ‘Doctrine of Aboriginal Rights,’ or the DAR. Slattery’s DAR recognizes that
Common Law doctrine surrounding indigenous peoples grew out the actual interactions
between Europeans and indigenous peoples in North America34 and his analysis
significatnly contributes to the literature by tracing the common law doctrine of
Aboriginal rights that still undergirds Canadian legal understandings of indigneous
peoples. Yet it also inaccurately suggests a balanced participation in that development
and a resulting framework that equally reflects the aspirations of both parties.
Exeplifying the intellectual exclusions Werther speaks against, Slattery’s 1997 article
accepts Canada’s assertion of sovereignty. It also, however, focuses on the indigenous
role in the development of current Canadian Aboriginal rights doctrine and even goes so
far as to suggest that the Canadian courts do not look as closely at Crown sovereignty as
they might.
Despite its seemingly benign commentary, Slattery’s article is subtly insidious.
Slattery sympathetically notes the contributions of indigenous peoples and credits their
role in developing the common law doctrines under which they now find themselves but,
like the Canadian state and other First World nations, he disregards the most potent
argument of indigenous peoples by refusing to question state sovereignty. This omission,
whatever Slattery’s actual views on Crown policy, implicitly validates state policy.
Contrary to making an assumption of sovereignty as Slattery does in his 1987
article, Werther argues that the situation should be fundamentally reversed. “If the state
has [sovereignty], the state must show by what theoretical and legal device this was
achieved.”35 Speaking particularly of Canada, Michael Asch and L. Zlotkin agree.
It seems incumbent upon those who wish to challenge [aboriginal assertions of sovereignty] to explain why First Nations were different than other non-European nations in this respect, to the extent that the mere arrival and claim of sovereignty by a European nation would be sufficient to
32 Slattery, UAR, 732. 33 Ibid., 735. 34 And, I would add, Central and South America. 35 Werther, Self-Determination in Western Democracies, 25.
52 establish a self-evident underlying title in that European nation. 36
Taking these scholars at their word, only briefly quoted here, would perhaps be similar to
taking the Crown at theirs. If Slattery’s 1987 article can be cited as a example of
reasoning from an assumption of state sovereignty, his 1991 article entitled "Aboriginal
Sovereignty and Imperial Claims"37 goes well beyond merely accepting indigenous
assertions and reasoning from them. His piece is an excellent example of an inquiry that
digs beneath the surface of sovereignty claims to get at their historical and legal roots.
The result brings into relief the questionable nature of state sovereignty.
Turning his attention to the Crown claims left unquestioned in his 1997 article,
Slattery delves into colonial history and traditional British legal understandings to
investigate Crown sovereignty at its source. During the Age of Exploration, European
colonization involved claiming land through symbolic acts, effective occupation, and
"discovery" when "there were no existing rights capable of impeding the smooth flow of
incoming sovereignty."38 Because classic European thought held that these methods of
acquisition could not be used "in territories…already under the sovereignty of another
power,"39 the explorers and colonists who came to America had to accept the premise of
an ‘empty’ land, void of sovereign nations, to legitimize European claims in North
America.40
The assertion that America was legally barren or ‘terra nullis, Slattery argues, is
simply false. Reasoning from the basic principle that all human beings have a right to life
and to the necessities of life against other peoples, Slattery concludes that "the premise
that North America was legally vacant when Europeans arrived cannot be justified by
reference to the basic principles of justice."41
36 Michael Asch and L .Zlotkin, “Affirming Aboriginal Title: A New Basis for Comprehensive Claims,” in Aboriginal and Treaty Rights in Canada, ed. Asch, Michael (Vancouver: UBC Press, 1997), 223. 37 Brian Slattery, "Aboriginal Sovereignty and Imperial Claims" (1991) Osgoode Hall Law Journal 29: 681-703. [hereafter Slattery, AS&IC] 38 Slattery, AS&IC, 686. 39 Ibid. 40 As Rÿser states, explorers justified land claims as “claims over unoccupied lands, ‘res nullius’ in Roman law.” Under this system “the rule of alluvium (right to occupy or claim land) required that the lands must be ‘terra nullius’ before the rule applied legally.” (Rÿser, Tribal Political Status) 41 Slattery, AS&IC, 696.
53 Why, then, has the judiciary left Crown claims to the lands of North America
unchallenged? Echoing his brief comment in 1987, Slattery explains that Canadian courts
have used the internally validating Act of State doctrine to justify their rulings. The
doctrine states "that where the [British] Crown has advanced an unequivocal claim of
sovereignty over a certain territory, British courts should recognize and enforce that
claim without further scrutiny."42 By accepting the Act of State doctrine without
question, today's courts can become passive instruments of colonial rule and forfeit their
moral authority. 43
Taken in tandem, these two articles by Brian Slattery make several important
points clear – points that are extremely important to the indigenous struggle to achieve
recognition of their right to self-determination. Firstly, scholarly and legal acceptance of
Canadian Crown sovereignty leads to discussions and conclusions premised on a faulty
base. Slattery’s second and later article reaches very different conclusions than his first,
primarily because he does not reason from the Crown viewpoint but rather tries to reason
to it.
Secondly, Slattery’s conclusions are not original but they are often unheard. The
legality of the sovereignty claimed by the Canadian nation-state over its territories is not
at all clear. For this reason and because indigenous peoples continually bring sovereignty
into discussions of their rights, sovereignty must be a part of any discussions regarding
indigenous claims to self-determination.
Finally, Slattery’s idea of a ‘Doctrine of Aboriginal Rights’ highlights the
violation of the norm of self-determination by the Europeans who colonized Canada.
After condemning the judicial system of claimant nations in his 1991 article, Slattery
seems to retreat from the issue and concludes by returning to the premise of his 1987
article: that extensive relations between Europeans and Native North Americans resulted
in a "distinctive body of inter-societal custom, recognized as binding among the parties"
known as the Doctrine of Aboriginal Rights.44 Canadian aboriginal law is certainly
distinctive, but it seems that an important point remains unsaid: If there are aspects of the
Doctrine of Aboriginal Rights which were not clearly understood, much less accepted, by
42 Ibid.,, 692. 43 Ibid., 691-2. 44 Ibid., 700.
54 Native peoples, then these aspects were unilaterally implemented and codified by the
British (and are now used by Canadians ) using authority derived from a highly
questionable assertion of sovereignty. This unilateral implementation of governance
structures is a direct violation of the norm of self-determination and denies indigenous
peoples’ international law status as sovereign nations.
International human rights and subjective prioritization
Identified earlier as a moral ‘twitch,’ the injustice of allowing the power and strength of
nation-states to prevent the realization of self-determination for indigenous peoples
motivates the struggle to articulate exactly why nation-states cannot continue to ignore
indigenous claims. It is perhaps not surprising that a discussion about a right to self-
determination and how indigenous peoples can access that right has led to morality and
justice. The implicit and explicit importance of morality in the field of international
human rights, and indigenous rights, could be seen as the same ‘weakness’ plaguing
international law generally. Questions of morality are also fundamental to the lack of
recognition and domestic positiviation of many indigenous rights, especially self-
determination.
What we call human rights or indigenous rights are derived from a particular
belief system, a particular idea on the morally appropriate way for human beings to
interact and for societies to be organized. Viewed in this way then, human rights are a
proposal from a certain moral perspective. Because the various nations and cultures of
the world do not necessarily share the same moral understandings, implementing an
international human rights system is a process fraught with difficulties. As Coyle says
Even the most tyrannous governments do not tell their people that the government glories in doing wrong. The arguments are over what is right and what is wrong…the Universal Declaration of Human Rights, therefore…is not a law, but a statement of moral judgment. 45
Despite the multitude of rights articulated in the Universal Declaration of Human Rights
and its two covenants, the violations of only a handful have met with nearly universal
condemnation. Thomas Buergenthal, a respected human rights lawyer who has recently
45 Coyle, 81.
55 been elected to serve on the International Court of Justice,46 notes that as a document
created and endorsed by a multitude of nations, the Charter represents a common
international understanding of human rights and fundamental freedoms. All rights and
freedoms are not equally important, however, nor are all universally accepted and
prioritized. Buergenthal argues:
In my opinion, an international consensus on core rights is to be found in the concept of ‘gross violations of human rights,’ and in the roster of rights subsumed under it…to the extent that agreement exists [on the rights included under ‘gross violations’], it reflects an international consensus on the types of governmental activities that are impermissible.47
Buergenthal identifies these impermissible activities to include: governmental policies of
genocide, apartheid and racial discrimination, widespread acts of torture and other
inhuman treatments as well as mass arrests and imprisonment without trial.
Even a cursory review of Amnesty International’s48 country reports show that
even these “gross violations” do not always result in United Nations’ or other
international action. By noting that not all of the Universal Declaration’s moral
suppositions are embraced by all nations, I am not suggesting that different moral
systems will not have areas of substantial overlap. Rather, my argument is that by their
very nature – focused on the individual, placing the state in a contractual relationship
with its members – the common Western articulation of human rights may have elements
that do not fit other particular visions of morally appropriate ways of interaction between
human beings.49
46 For more on Dr. Buergenthal’s appointment and his biography see <http://128.164.127.251/~media/ pressreleases/03-02-00-buergen.html>. 47 Thomas Buergenthal, “Codification and Implementation of International Human Rights,” in Human Dignity: The Internationalization of Human Rights: Essays Based on an Aspen Institute Workshop , edited by Alice H. Henkin (New York: Aspen Institute for Humanistic Studies, 1979), 17-18. 48 See Amnesty International <http://www.amnesty.org/ailib/aireport/ar99/> for country reports current to this study. Site updated regularly; reports published yearly. 49 The same holds true in the UN’s application of certain rights. African nations seeking decolonization certainly agreed with the end goal but as Siba N’zatioula Grovogui argues in Sovereigns, Quasi-Sovereigns, and Africans: Race and Self-Determination in International Law (Minneapolis: University of Minnesota Press, 1996), the dependence of international politics on Western dominated political economy and its legal apparatus produced two of the most significant paradoxes of African decolonization: 1) “Only the rights sanctioned by the former colonialists were accorded to the colonized, regardless of the needs and demands of the latter” and 2) “The rules and procedures of decolonization were determined and controlled by the
56 Here it is important to note that implicit in every moral system is not only a set of
values and a vision of what is right and wrong, but also a prioritization of perceived
rights, values or duties. The fundamental conflict between “freedom from” rights and
“freedom to” rights highlights the importance of prioritization. In Canada, for example,
citizens have the “freedom to” have an abortion. Citizens also have the “freedom to”
protest abortions. Yet the individual wishing to have the abortion has the “freedom
from” being harassed or prevented from having the procedure. Civil laws of all types
require balancing and prioritizing of conflicting “freedoms from” and “freedoms to.”
Balancing rights requires prioritizing those rights, in other words deciding how
much one right should or can be violated in the realization of another. Different moral
systems will place a higher value on some rights, and a lower value on other rights. To
return to the previous example, a people who believe abortion is wrong and whose state
policy makes abortion illegal will place little value on the individual’s “freedom from”
harassment when trying to have an abortion; in fact, this right will be virtually non-
existent. Conflicting ideas of the importance of certain rights can become highly
problematic when they clash or when one code is forced on another people with an
alternate morality or method of prioritizing. The struggle for indigenous rights is rife
with conflicting priorities. The results of these conflicts can be seen internationally at the
drafting of the Declaration of Indigenous Rights and domestically in the debate over the
Nisga’a Final Agreement and other government benefits to Canada’s indigenous
peoples.50
As noted above, most member states at the United Nations place the preservation
of the integrity of existing nation states far above a people’s right to self-determination.
Focused on the individual, international human rights call for and protect individual self-
determination, the ability to participate in and alter/support the way in which one’s life is
former colonial power to effect specific outcomes.” (8) Grovogui notes the irony of this situation because for him self-determination, which was supposedly granted to the former colonies, is the “absolute political autonomy to create rights and objectives for oneself.” (8) 50 For samp les of the debates surrounding the Nisga’ Final Agreement, see Paul Barnsley, “Final agreement debated across the country,” Windspeaker, September 1998, available from http://www.ammsa.com/ windspeaker/WINDNEWSSEP98.html #anchor81283740 [March 2001]; Tom Molloy, “Inside the Nisga'a Treaty: The criticisms have been unfortunate and inaccurate,” Globe & Mail, Thursday, July 29, 1998, available from http://www.bc-mining-house.com/news/gam_g98c.htm [March 2001]; and the various articles and statemens available from http://www.nisgaa.org/Nislist.htm [March 2001].
57 regulated through voting or some other individualized participation in the political order
and governmental structures, free from harassment or discrimination. 51 This right is
practiced as an individual as part of a society of other individuals; self-determination in
this sense certainly does not endorse a separate government for each individual human
person. Fourth World nations, however, claim self-determination not only as single
individuals but also as a group, a people. A people’s right to self-determination is very
different from this individual right to self-determination. This assertion includes each
individual’s rights, which may require a change within the existing structure, as well as
the rights of a group of people to have meaningful participation in the formation of
structures and institutions of governance as well as on-going participation.
Indigenous self-determination need not, and in most cases would not, be exercised
through separation or damage to the physical boundaries of existing nation states.52
Many nation-states, however, assume that recognizing indigenous nationhood and self-
determination would hearken the end of their nation and their state. Existing states fear
the renegotiation of internal jurisdiction and governance power to such an extent that at
forums such as the United Nations, member states struggle to exclude indigenous peoples
from the umbrella of self-determination. 53 Even when faced with the unjust seizure of
indigenous lands or evidence that indigenous peoples never relinquished their right to
self-determination, many states still prioritize the continuation of current political
systems and paradigms which favor the economic and social assimilation of indigenous
peoples over self-determination and adequate compensation for outright theft. For
indigenous people, on the other hand, self-determination is an essential right, one that
51 See, for example, the International Covenant on Civil and Political Rights, International Covenant on Civil and Political Rights, Dec 16, 1966, 993 UNTS 171. 52 As S. James Anaya says in Indigenous Peoples in International Law (New York: Oxford Press, 1996) [hereafter Indig Peoples in Int’l Law], “Focusing on autonomous statehood as a part of self-determination diminishes the human rights aspect of self-determination and ignores the fact that many groups do not want to claim absolute political autonomy but rather seek to rearrange the terms of integration, reroute its path, or otherwise alter their position vis a vis the nation-states within which they find themselves.” (79) 53 For example, discussing the then recent UN World Conference on Human Rights in Vienna an Alberta Report article from July 12, 1993 states:
The previous Friday had been set aside for consideration of the rights of "indigenous peoples." During that discussion, the Canadian government had insisted that the draft resolution refer not to "peoples" but to "people." The Canadians explained that they wanted to avoid the former term since it might legally imply a right of self-determination and they did not wish to open up that particular Pandora's box yet.
58 cannot be ignored or brushed aside due to fear, ignorance, or an unwillingness to deal
with challenging monetary compensation or structural challenges. When either side is
pressed to source the rationale for their particular prioritization, eventually the reasoning
must come back to a particular prioritization of rights.
This is not to say, however, that all prioritizations are equally just. The
questionable assertion of Crown sovereignty in North America and the subsequent denial
of indigenous sovereign nationhood cannot be de-prioritized justly because the reality it
portrays is ‘difficult’ or ‘disruptive’ of the comfortable national myths of the Canadian
nation-state. That initial act in violation of the period’s international law and of our
modern day understanding of human rights began a period of colonization of indigenous
peoples whose structures and effect have yet to be completely dismantled. The
international community has found colonialism and its structures to be in irreconcilable
conflict with fundamental human rights, and this study has argued that the violation of
the norm of self-determination is at the heart of that conflict. In a country that prides
itself on democracy, justice, and ‘peace, order, and good government,’ denying
indigenous self-determination and perpetuating a yet to be fully decolonized system is
unacceptable. Tearing that same country to shreds through conflict and violence to
demand justice through force is equally as unacceptable. To quote Taiaiake Alfred,
“there is no hope – or sense – in attacking the state with physical force, or in seeking
peace by unpeaceful means.”54 Fortunately for indigenous peoples and the Canadian
nation-state, there are alternatives.
Indigenous peoples as nations and unbinding the nation-state
Indigenous nationhood, a natural result of their legal status as sovereigns before the
arrival of Europeans in the Americas, has been as difficult for First World nations to
accept as indigenous sovereignty. Canada has begun to call the indigenous peoples
within its claimed borders ‘First Nations,’ and though this term is useful in constructing
an accurate timeline of occupation in North America, the Crown uses the word without
the international connotations of ‘nation’ and ‘peoples.’ First World states, what the
international community commonly calls ‘nation-states,’ have trouble conceiving of
59 indigenous nationhood for many of the same reasons self-determination is only with great
difficulty conceived of separately from independent statehood. Nation-states ignore the
rising tide of ethnonational demands for recognition and refuse to change their conceptual
understandings of state- indigenous relations at their peril, however. Resolving the
demands of ‘nations within’ will require nation-states to reconceptualize their ideas of
‘nation,’ ‘state,’ and the viability of the one nation, one state ideal.
Distinguishing nations and states
The modern nation-state is so predominant in today’s international political system that it
is easy to overlook the fact that ‘nations’ and ‘states’ are two distinct socio-political
ideas. There is generally agreement on the definition of a “state.” The state is “a legal
and political community” says Hannum55 established by “deliberate action” adds
Johnson. 56 Indeed, the development of the nation-state system was deliberate and
represents a particular response, a proposed solution if you will, to the question of how
human social interaction should be ordered. According to Rÿser the ‘state’ “is a rational
organizational construct created to solve specific social, economic and political problems,
and it is made legitimate by virtue of [the] recognition extended to it by other established
states.”57 The nation-state system’s structure of governance represented a response to the
formulations that preceded it and “pushed aside other forms of political, social and
economic organization.”58
A nation on the other hand is a more amorphous and frequently conflicting term.
A nation “is classified by characteristics beyond the control of its members” says
Johnson59 and is a community of people “whose members are bound together by a sense
55 Hannum, Autonomy, Sovereignty, and Self-Determination, 24. 56 Harold S. Johnson, Self-Determination Within the Community of Nations (Netherlands: Sijthoff, 1967), 19. 57 Rudolph Rÿser, “Statecraft, Nations and Sharing Governmental Power” in IWGIA Document No. 76, "Indigenous Peoples Experiences with Self-Government", proceedings of the seminar on arrangements for self-determination by Indigenous Peoples within national states, 10 and 11 February 1994, University of Amsterdam. Also available from < http://www.cwis.org/fwdp/International/statcrft.txt> [July 2000]. References in this paper are to the internet article. Hereafter, Rÿser, Sharing Governmental Power. 58 Rÿser, Tribal Political Status. 59 Johnson, 19.
60 of solidarity, a common culture, a national consciousness” Hannum concludes.60 Rÿser
offers a useful expansion of these definitions.
Nations are evolved human organisms, self- identified, including members who share a common culture, heritage, language and geographic place. Their existence is not dependent on size, and their identity is essentially determined by their culture. The culture of each nation is determined by the relationship between the people and the land.61
Rÿser’s focus on self- identification mirrors the reality of the lived experience of peoples
who vary widely in size and cultural identity yet consider themselves to be ‘nations.’
Neuberger notes that because the term has no accepted or agreed upon characteristics,
perceived national selves frequently come into conflict.62
The nation-state system’s one nation, one state ideal and its assumption that
modern nation-states actually represent this ideal exacerbate conflicts between national
selves. Nietschmann’s definition of nations and states brings the cause of this conflict
into relief.
States are the political apparatuses that unite (sometimes forcibly) different peoples and nations into one internationally recognized political and territorial entity. Nations, conversely, are made up of a self- identifying people, often united by a common language, religion and political consensus, who occupy all or part of an ancestral territory. 63
As created entities, states are not always the result of a nation gathering itself into an
internationally recognized sovereign political entity. In fact, very few states can claim to
contain only one nation. Far more common are multi-nation states, of which Canada is
an excellent example.64 The ‘political apparatus’ we know as Canada has forcibly joined
60 Hannum, Autonomy, Sovereignty, and Self-Determination, 24. 61 Rÿser, Sharing Governmental Power. 62 Neuberger, National Self-Determination, 55. 63 Nietschmann, internet. 64 In my discussions of a multi-nation Canada, I am intentionally avoiding the debate as to whether or not Québec constitutes a distinct nation. Québec will certainly be mentioned, especially in Part II, but only for the basis of comparison or example. Whether Québec is a nation or not, it is clear to this author that Québec’s claims are fundamentally different from indigenous claims based on the colonization (domination) suffered by indigenous nations, who held sovereignty over the lands now claimed by Canada prior to European colonization.
61 many indigenous nations unto itself, along with immigrants originally from other nations,
England or Scotland or elsewhere. The political state of Canada has, to a certain degree,
created a cultural nation of its own. 65 This cultural and political national self frequently
clashes with the various indigenous national selves currently sharing territory with the
Canadian state. As Canadian cultural and political scholar Will Kymlicka has noted,
‘Jane Canadian’ usually does not realize the aspects of her culture, the “common
language, religion, and political consensus” she shares with her fellows, because it is the
culture of the numerical majority in Canada.66 Though this dominant Canadian national
self overlaps significantly with the various indigenous national selves, conflict ensues
where non- indigenous and indigenous national selves do not overlap.
The conflict this study is concerned with goes beyond cultural differences,
beyond a need for toleration or ‘multiculturalism’. The claims to resources and
sovereignty made by indigenous nations are in direct conflict with similar claims made
by the ‘pan-Canadian nation’ and those who consider themselves to be members of it.
The ‘Canadian nation’ concept denies the sovereignty and the very nationhood of
indigenous peoples. These views, held by the numerical majority in Canada, are carried
over to become important tenets of the Canadian state. This paper has discussed the
absence of real participation by indigenous nations in the formation of the Canadian state.
The extent of the violation of indigenous peoples’ right to self-determination can be
better understood within the context of this distinction between nations and states.
Unable to participate adequately in the formation of the structures and institutions that
compose the Canadian state, indigenous nations are left without the “political institutions
necessary to allow them to exist and develop freely” on a continual basis.67 Indigenous
peoples in Canada find themselves subject to state laws and bureaucracies that deny their
65 For example, Cobban argues that historically, cultural unity has followed political unity. A cultural nation may be created by political state not necessarily, as some argue, by a culturally distinct people forming a political state. Cobban cites the United States, which certainly has its own cultural identity was born as a political state, as an example. See A. Cobban, The Nation State and National Self-Determination (1969) especially at 108. 66 In Finding Our Way: Rethinking Ethnocultural Relations in Canada (Toronto: Oxford University Press, 1998), Kymlicka argues that while Canadians have little sense of their own nationhood, they believe that they should be able to “live and work in English throughout the country, taking rights and entitlements with them.” (155) Most never realize that they are making this demand because they are the majority. (158) Kymlicka suggests that by trying to get English speaking Canadians to recognize their own nationalism, they may become more aware that there are other nations in Canada with their own nationalism. (159) 67 Anaya, Norm of Self-Determination, 161.
62 very nationhood. This conflict, though essentially related, is more fundamental than a
clash over cultural traditions.
Denying indigenous nationhood: Domestication
One common way in which nation-states deny the nationhood of the indigenous peoples
with whom they share territory is through a process called domestication. Domestication
is a process whereby the entire indigenous "'problematique' [is] removed from the sphere
of international law and placed squarely under the exclusive competence of the internal
jurisdiction of the non- indigenous States."68 The domestication of indigenous issues
takes many legal, political, and social forms and is supported by a discourse that
intentionally diminishes indigenous peoples below the level of sovereign nations. One
example of this ‘linguistic domestication’ is reference to indigenous peoples as
‘minorities.’ It is true that within the Canadian state as a whole indigenous peoples are a
numerical minority, but the term minority is also applied to ethnic groups within Canada
who do not have or aspire to recognition as nations. By grouping indigenous peoples in
with the Asian population in British Columbia, for example, indigenous demands are
diminished to claims made against a state by one of its members (domestic) rather than a
claim by one nation against another (international).
The linguistic domestication of indigenous peoples is part of a larger paradigm
that includes the domestication of indigenous treaties. As noted by Miguel Alfonso
Martinez in his Study on treaties, agreements and other constructive arrangements
between states and indigenous populations, when treaties between indigenous and non-
indigenous nations are seen as domestic issues, domestic courts become the proper
forums to resolve issues between indigenous and non-indigenous peoples and are seen as
having the "authority to propose an interpretative framework to resolve disputes.”69
Martinez notes that tough unilateral treaty abrogation or amendment is unacceptable
under international law, 70 the larger paradigm of domestication shields state action from
68 M.A. Martinez, Study on treaties, agreements and other constructive arrangements between states and indigenous populations, Report of the Special Rapporteur, UN Commission on Human Rights, UN Document: E/CN.4/Sub.2/1999/20 (22 June 1999). Hereafter Study on treaties. 69 Isabella Schulte-Tenckhoff, "Reassessing the Paradigm of Domestication: The Problematic of Indigenous Treaties", Review of Constitutional Studies 4, no.2: 247. [hereafter “Reassessing the Paradigm”]. See also Study on Treaties, 30. 70 Study on Treaties, 44.
63 legal and political scrutiny. 71 Prohibitions against interfering in the domestic affairs of
nations (and violating the territorial integrity of the state) prevent international
interference and censure of state actions towards indigenous peoples when those actions
are seen as a domestic matter. Schulte-Tenkhoff argues that in Canada, domestication is
evidenced by the courts’ adopted view of treaties as sui generis.72 By labeling treaties as
"a special kind or case" and of an essentially different nature than other treaties, the
Canadian courts deny indigenous treaties their rightful status as nation-to-nation
agreements with all the legal implications that status entitles under international law. 73
Viewing indigenous peoples as minorities and their claims and treaties as issues
properly resolved in domestic courts also creates a virtually insurmountable obstacle in
negotiations between indigenous peoples and na tion-states. The negotiations needed
between indigenous peoples and nation-states must aim to redress grievances, and create
a new relationship free from the violations of self-determination that have marred the
current relationship. When nation-states refuse to see indigenous peoples as nations, they
foreclose just what many indigenous peoples see negotiations and other conflict
resolution mechanisms as being about: defining relationships between peoples.74 James
Tully, a Canadian philosopher and political scientist, argues that treating indigenous
peoples as minorities within Canada uncritically perpetuates a form of domestication and
inhibits any process of decolonization. 75 Decolonization can only occur when the
nationhood of indigenous peoples is recognized, and relations with nation-states are
nation to nation, not nation to minority.
Multi-Nation states
In a socio-political system that assumes a one-to-one correlation between nations and
states, the important distinction between these international actors is frequently lost and
the domestication of the indigenous ‘problematique’ frequently overlooked. Accepting
the existence of more than one nation within a state is a prerequisite to identifying,
71 “Reassessing the Paradigm”, 243. 72 Ibid., 259. 73 Ibid; Study on treaties, 18. 74 James Tully, “Reconsidering the BC Treaty Process.” Lecture presented at Speaking Truth to Power, A Treaty Forum, presented by the BC Treaty Commission and the Law Commission of Canada, Vancouver, March 3-4, 2000. Hereafter, Tully, BC Treaty Process. 75 Tully, BC Treaty Process. ‘Treaty’ negotiations in BC will be addressed in detail below.
64 addressing and resolving the problem of domestication and other manifestations of state
denial of indigenous nationhood. Rÿser and Nietschmann both note the many Fourth
World “hot and cold wars” are commonly mis-regarded as domestic conflicts or civil
wars. The Karen, Kachin, and Sha nations within the Burmese State and the Jumma
Peoples within Bangladesh are examples not of civil wars but of
conflicts between states and nations. They are conflicts which result from the failure of the state to perform its function. They are conflicts resulting from a failure of states to ensure the full sharing of political power by all nations within the framework of the state.76
When political power within states is not adequately shared, the state will lose the
support of its component nations. In fact, Rÿser argues that the movement of indigenous
peoples for self-determination “reflects the long struggle between those who seek the
permanent establishment of the state and the original nations on top of which the state
was established.”77 Multi-nation states can not long survive without national
forbearance.78
It would be incorrect to assume, however, that all indigenous movements against
states seek statehood as an end goal. Writing in 1969, A. Cobban, an oft-cited and well
respected international law scholar, said that “the definition of a nation, as the term is
used in the theory of self-determination, is essentially political. The nation is a
community that is, or wishes to be, a state.” 79 This assertion supports the one nation,
76 Rudolph Rÿser, “Statecraft, Nations and Sharing Governmental Power.” In IWGIA Document No. 76, "Indigenous Peoples Experiences with Self-Government", proceedings of the seminar on arrangements for self-determination by Indigenous Peoples within national states, 10 and 11 February 1994, University of Amsterdam. Also available from < http://www.cwis.org/fwdp/International/statcrft.txt> [July 2000]. Hereafter, Rÿser, Sharing Governmental Power. Rÿser strongly supports international intervention when conflicts are between nations. “The breakup of states like Yugoslavia need not result in the terror that is now being experienced in Croatia, Bosnia and Serbia. Sustained, long-term conflicts like the war between the Burmese state and the Karen, Kachin and Shan nations are remnants of a failed British colonial policy and should be brought to a swift end by international sanctioned peace negotiations. The war between the Jumma Peoples and the government of Bangladesh should be ended through peaceful negotiations, mediated and sanctioned internationally. The expansion of states into national territories like the Peoples Republic of China's occupation of Tibet must be halted and brought to a negotiation table for peaceful disengagement. The war in Guatemala continues and the wars between the Indonesian government, the peoples of West Papua, East Timor and South Molucca continue unabated -- all demanding internationally sanctioned intervention.” 77 Rÿser, Sharing Governmental Power. 78 Ibid. 79 A. Cobban, The Nation State and National Self-Determination (1969) @ 108, in Sureda United Nations Practice,130.
65 one state ideal and ignores the reality of many indigenous struggles that seek to rectify
past and continuing violations of self-determination through real participation in the state
as a sovereign nation, not necessarily through secession.
In the context of nations, states, and nation states, the indigenous claim to equal
status as a sovereign nation poses vital conceptual problems. In the current nation-state
system, states are the only recognized receptacles of sovereignty. Tellingly, in his report
on self-determination, Cristeascu states:
The sovereign national state is at present the main institution which as nation expresses its wish to take part in international life and play its role as a direct participant in the solution of international problems of concern to it.80
Before it can attain a recognized voice in international affairs, the nation must become a
state, the prime object of international law. Yet this demand, this seemingly necessary
continuum from nation to state to nation-state, is both unrealistic and spurious for the
Fourth World, internationally unrecognized nations within states. To return to Canada, it
is simply not possible for the various indigenous nations to send the ‘Canadian nation’
and its state apparatus packing. How then can indigenous sovereignty be recognized and
the violations of self-determination indigenous peoples have suffered be redressed
through decolonization? One solution lies in using an understanding of the difference
between nations and states to break apart the tunnel vision and unbind the nation-state.
Unbinding the nation-state
The repercussions of pairing nation with state and states with sovereignty are harmful to
realizing just resolutions of indigenous assertions of self-determination. If only states can
possess sovereignty and if all nations must have their own states (hence the term ‘nation-
state’), indigenous peoples who claim sovereignty as nations pose a particular and
unwelcome problem. This conceptual difficulty resonates with the forced equation of
self-determination with independence discussed earlier in this paper (see Chapters 1-3).
The UN is unwilling to grant indigenous peoples access to the right of self-determination
because self-determination is equated with independence, and independence for peoples
sharing territory with established nation-states is not possible without violating the 80 Cristeascu, Self-Determination study, 282.
66 territorial integrity of those states. Looking to the moral and practical basis of the term
disengaged self-determination from independence and allowed the right to be applied
universally to all people who had suffered violations of the norm of self-determination.
A similar separation of nation and state is required.
As an internationally recognized nation-state, Canada has an understandable
aspiration to maintain itself and, like most of its contemporaries, makes policy and
political decisions based on self- interest. Though it is in Canada’s best interest to deal
with its lingering ‘Indian problem’ as quickly and as economically as possible, the idea of
having more than one sovereign na tion within the borders of the current Canadian nation-
state strikes at the heart of Canadian nationalism and the one nation, one state equation so
prevalent in the western world. This equation, however, once again confines the range of
possible relationships between indigenous and non- indigenous peoples within Canada by
setting up false dichotomies between unity as one nation-state and succession.
Recognition of indigenous nationhood does not necessarily have to result in either option.
Iris Marion Young, in her discussion of the extensive obligations of justice that
bind nations under contemporary conditions of global interdependence, explores the
assumed one-to-one correspondence between nation and state.81 According to Young,
nationalist ideologies typ ically define the nation-state narrowly and set up boundaries
separating off outsiders while suppressing internal diversity to form the “bounded unity
of national membership.”82 Nationalism thus frequently aspires to achieve the nation-
state where “an individual and separate political community coincide[s] with one and
only one distinct people or nation.” 83
Through Young’s analysis, the ‘state’ as expressed in ‘nation-state’ can be
understood as “an individual and separate political community.”84 The notion of
‘individual and separate’ is obviously blurred by the inter-connectedness of global
political units but the reality of political entities accountable to and empowered by a
certain group of individuals (internally constructed as nations, peoples, etc) that in turn
could be said to govern those individuals nonetheless distinguishes states within the 81 Iris Marion Young, “Chapter 7: Self-Determination and Global Democracy,” in Inclusion and Democracy (Oxford: Oxford University Press, 2000). Hereafter, Young, Chapter 7. 82 Young, Chapter 7, 25. 83 Ibid., 26. 84 Ibid.
67 global community. ‘Nation-state’ is accurately used to describe a state that is made up of
only one nation or people. As discussed above, the term becomes problematic when it is
used uncritically to describe states made up of more than one nation.
When dominant powers such as the Canadian Crown enter into negotiations with
the preconceived notion that there can only be one nation per state, national claims can
only be resolved through the two options alluded to earlier. The first option is for the
several nations presently constituting the state to separate into ‘individual and separate’
states with unique and distinct territories and national governments. The second is to
choose one nation under which all others will be subsumed thus preserving the original
‘nation-state’. In both cases, the one-to-one ratio of nations to states is maintained. Both
options present their own difficulties and insufficiencies which could be discussed at
length but the dichotomy is presented here to highlight the limitations of demanding that
national aspirations result in the creation of one or several nation-states.
The way out of this linguistic and practical trap is to enter into multi-national
negotiations without a preconceived notion of the nation-state and, in essence, separating
the idea of nation from the idea of state. Freed from this restriction, solutions at once
become more creative and more challenging. The British Commonwealth is an example
of a very loose affiliation of separate states (some of which are currently made up of
several nations) who are structurally distinct but who nevertheless have privileges and
relationships not available to non-affiliates. Other forms of unity and/or shared
governance which lie between the extremes of a unitary state and a mostly symbolic unity
become possible when the state and the nation are unbound. As will be discussed in Part
II, unbinding the nation-state means federalism is no longer limited to a system whereby
a single nation is divided into general and regional governments each with its own
autonomous area of authority that cannot be altered or impinged upon by the other.
Rather it becomes possible to envision a nation as a unit within an overarching state
federal system, perhaps with separate and distinct powers from other regional units.
Conceived of in this way, federalism seem to offer a valid political structure where
nations occupying a shared territory can both realize self-determination.
68
Conclusion: Indigenous peoples and self-determination
The International Covenant on Civil and Political Rights, the International Covenant on
Economic, Social and Cultural Rights and the Declaration on the Granting of
Independence to Colonial Countries and Peoples all boldly declare that “all peoples have
the right of self-determination.” Despite these inclusive proclamations, however, the
United Nations has been unwilling to grant indigenous nations international recognition
as ‘peoples’ and has excluded indigenous nations as appropriate subjects for the right of
self-determination. The UN has linked self-determination with independence and
peoples with self-determination while facing the practical reality that independent
statehood for all peoples is not possible. Controlled and supported by nation-states, the
UN has also linked nation and state, recognized sovereignty as an exclusive attribute of
states and committed itself to upholding the territorial integrity of its members while at
the same time stressing the international importance of basic human rights that cut across
all borders.
Faced with the contradictions implicit in these equations, the United Nations has
been forced to limit the scope and reach of self-determination and reserved the right for
geographically distinct colonial peoples for whom independent statehood is possible.
The term ‘peoples’ has remained ambiguous and allowed the right of self-determination
to be granted only to select ‘populations.’ By recognizing only nation-states as
international actors with access to self-determination and the protections of territorial
integrity, the UN has tried to avoid the difficult and complex situation of nations within
states. The UN cannot call these ‘populations’ nations or peoples because these terms
would allow them access to self-determination, independent statehood, and the disruption
of the territorial integrity of existing nation-states.
Indigenous peoples have fallen victim to the limitations of the United Nations’
own vision of self-determination, nation-hood, and people-hood. Breaking the
connections between self-determination and independent statehood, between peoples and
self-determination, and between nations and states expands the application of this
precious and much coveted human right. Understanding self-determination as a norm
whose violation requires redress and accepting that a one-to-one correspondence between
69 nations and states is neither necessary nor allows universal access to the right of self-
determination. Separating sovereignty from self-determination and unbinding the nation-
state can also create a space within existing states where indigenous peoples can realize
self-determination as members of a multi-nation state.
Using Canada as a case study, Part II will address the challenges implicit in a
multi-nation state. The paradigm within which Canada addresses indigenous issues is,
for the most part, consistent with that endorsed by the United Nations. Thus, like the UN,
its understandings are challenged by the existence of many nations within the one
Canadian state. Similarly, the just resolution of Canada’s “Indian problem” is possible
by disconnecting self-determination from independence, nation from state, and by
accepting indigenous nationhood and sovereignty. Werther’s summary of indigenous
assertions of their right to self-determination effectively links the international landscape
described in Part I with the related yet unique challenges of domestic assertions of
nationhood and sovereignty. His description, quoted below, also highlights the
connections between international and domestic understandings – and shows that changes
at either level can flow to the next.
On the nature of domestic aboriginal claims, Werther says that
a claim to aboriginal status is a legal and moral claim upon the state that incorporates referents in early international law and political theory into the structure of the claim and relies upon the state’s own claim to legitimacy in law to help groups pursue their self-determination goals. 85
These modern aboriginal self-determination demands
have their grounding in a broad, principled interpretation of national and or international law (and its undergirding theory), which aboriginal people contrast with a history of self-serving, usually unilateral, legal, and political maneuvering by states that had its genesis in the policy goals of dominant governments rather than in a reasoned appeal to law, political theory, or ‘natural rights’.86
Given the historical record of colonization, gaining self-determination for indigenous
peoples seems straightforward, assuming
85 Werther, Self-Determination in Western Democracies, 32. 86 Ibid., 36.
70 that theory about aboriginal rights faithfully informs national law, that national policy faithfully adheres to national law and does not try to change it to legitimate state interests, that national law and policy adhere to the Law of nations, and that the Law of Nations is impartial, both originally and through history, in treating each people’s claim to self-determination as of equal weight and as subject to rational and principled action within the community of nations. All of these assumptions have proved false. 87
As evidenced by the discussions in the previous chapters, those with superior
political, economic, and military power have cont rol over the norms and rules of
international law and can control their selective implementation. All too often, Werther
says, “Law follows power.”88 Dispelling any naïve visions of the United Nations and
international law in general as a panacea for indigenous claims, Werther argues that
modern international law was specifically designed to exclude indigenous peoples. 89
This, he says, is why some form of federation with existing states is now the favored
option for nations within states rather than self-determination as an independent nation.
Favoring some form of confederation for Fourth World nations and their First
World colonizers seems at first blush to be a capitulation to the strength the First World
and the international system constructed by it. This view, I would argue, is incomplete
and potentially damaging. An understanding of self-determination based on locating and
redressing violations of the norm of self-determination means that a people can realize
self-determination to its fullest potential while still remaining affiliated with other
peoples, whether in the form of a loose federation or a unitary state. For indigenous
peoples, this means that Fourth World and First World peoples who share territory must
sit together as equal nations, locate violations of the norm of self-determination, and
negotiate remedial prescriptions. In a state such as Canada, it is a profound
understatement to merely say that this task “will not be easy,” and there are certain
practical and theoretical hurdles that both sides will have to overcome before negotiations
can even be conceived of as likely to bring about a just resolution.
71 Firstly, as has been argued above, First World states must view the right to self-
determination as a spectrum, a range of options of how a group can participate in their
political, social, and cultural future. The limited understanding of self-determination
perpetuated at the United Nations must be pushed aside while the basic norm of self-
determination is brought forward and made applicable to all peoples. History, written
and oral, must be used to locate violations of the norm of self-determination, and
remedies must be devised which address the constitutive and on-going aspects of those
violations. Assuming that self-determination means independent statehood and
subsequently eliminating it from negotiations denies indigenous peoples an international
norm and a basic human right. Indigenous peoples of the Fourth World must also be
willing to honestly and diligently participate in a process of identification and negotiation
and accept the same understanding of self-determination.
Secondly, when ascertaining remedies, both sides must also accept the fact that
they are sharing the same territory. Viewing independent statehood as the terminal
expression of self-determination, as the United Nations does, is not always realistic when
territories are shared. This obvious fact not only necessitates action but it sets practical
limits on the nature of negotiated resolutions. Independent statehood for the lands
claimed by Canada and the lands claimed by indigenous peoples can simply not occur;
compromise is the only possible resolution. That compromise, however, cannot be solely
demanded of the weaker power, nor of the more powerful. The party who violated the
norm of self-determination rather than the victim of that violation can, however, expect
to be the beneficiary of redress.
Thirdly, First World states must accept that indigenous territorial sovereignty and
nationhood cannot be ignored. As will be discussed in Part II, without such recognition,
indigenous peoples are indeed forced to succumb to the power of First World states, and
might will indeed make right. Nationhood and sovereignty must be figured into the
remedies for violations of the norm of self-determination as elements particular to the
negotiation at hand. Indigenous nationhood requires that negotiations be nation to nation
and that remedies similarly reflect this relationship. Questionable assertions of territorial
sovereignty by First World states must be addressed and remedied not only because
spurious claims contribute to the denial of a people’s right to self-determination but also
72 because theft and usurpation are unlawful. Honouring indigenous rights is a moral issue
to be sure but one compounded by the demands of justice and international human rights.
73
PART II: INDIGENOUS SELF-DETERMINATION AND CANADIAN FEDERALISM
Introduction
Part II will bring the conceptual understandings explored in Part I and the larger
context of ethnonational movements to bear on Canada. One of the First World nations
who acknowledge the indigenous peoples within their borders with special legislation,
Canada presents an interesting case study. In 1982, the Canada Act patriated the
Constitution of Canada, freeing the Dominion of Canada from the power of the British
parliament. Included in the Constitution Act, 1982 (a schedule to the Canada Act) was
Section 35 which ‘recognized and affirmed Aboriginal and treaty rights’ and seemed to
protect indigenous rights in Canada.
The myriad of legal cases leading up to the 1982 amendments and subsequent
litigation on the content of s.35 have altered the legal situation of indigenous peoples in
Canada. The underlying tenets of Crown aboriginal policy, however, have remained little
changed. The Crown’s assumption of complete sovereignty over the lands it claims as
Canada and Crown denial of indigenous nationhood continue to undermine any
‘progress’ in courts. Existing Crown policy also prohibits negotiated agreements from
addressing the decolonization project that is necessary to redress violations of self-
determination and recognize indigenous sovereignty. Using examples from the Nisga’a
Final Agreement and the British Columbia treaty process, the first chapter of Part II will
highlight aspects of Crown policy that hinder fair and just negotiations. Reference will
also be made to the important legitimization of Crown policy provided by the Canadian
judicial system. The courts play a key role in defining Crown terminology while leaving
fundamental Crown tenets unchallenged. The underlying theme of the first chapter will
be that until Canada questions these tenets, the options for resolving indigenous claims
are few and the possibility of reaching mutually acceptable resolutions is unlikely.
Working from the belief that the stability and integrity of the Canadian state
need not be entirely compromised in order to do justice to indigenous claims, the second
chapter of Part II will briefly present one possible creative avenue for the recognition of
74 the nations currently sharing territory with the Canadian state. A federal union that
recognizes indigenous nationhood offers a real alternative to the delegated authority
currently proposed by the Crown. The autonomy facilitated by a federal system is also
consistent with the traditions of many of the indigenous nations currently residing within
the claimed borders of the Canadian state. Both a comprehensive theoretical discussion
of federalism and a detailed discussion of what such an arrangement may look like is
beyond the scope of this paper. Indeed, negotiations leading to such an arrangement
would not be easy and, like any federation, would require continual renegotiation.
Chapter 5 will, however, suggest several aspects of federal systems that are particularly
suited to the Canadian context. These examples will show that the federal ideal does
offer a viable solution to the moral, legal, and political challenge of allowing many
nations to realize self-determination within a single state. While working for the
international recognition that could force Canada to recognize indigenous nationhood,
domestic negotiations toward a multi-nation state, as opposed to a form of delegated
power sharing, can and should continue.
75
CHAPTER 4: CANADIAN POLICY ON SELF-DETERMINATION AND NATIONHOOD
Introduction
Chapter 4 will begin Part II with a look at Crown policy towards indigenous peoples, or
to use the language the Crown has created, towards the aboriginal First Nations of
Canada. After a brief review of Section 35, Chapter 4 looks at how the Canadian legal
system has addressed the Aboriginal rights protected by s.35. Though ostensibly separate
and distinct from the legislative arms of the Canadian state, domestic courts in Canada
serve to legitimate Crown policy, support central Crown tenets and further domesticate
the resolution of indigenous issues. As an organ of the state, domestic judicial support of
Crown policy may not be surprising but it is disappointing.
The next section of Chapter 4 will focus on Crown policy as expressed in the
federal information sheet on Aboriginal Self-Government; the Federal Policy Guide; the
Honourable Jane Stewart's address on the occasion of the unveiling of Gathering
Strength: Canada's Aboriginal Action Plan; and the federal Agenda for Action with First
Nations.1 Though court decisions perceived as favorable to indigenous peoples have
helped move Crown policy in a seemingly beneficial direction, this section will explore
beneath the surface of Crown rhetoric using the Nisga’a Final Agreement and the British
Columbia Treaty Process as examples. A close reading of these documents reveals a
virtually unaltered ideological base that denies indigenous sovereignty and nationhood
and favors the domestication of the indigenous problematic. Paving the way for the
discussion of federalism in Chapter 5, the last section of Chapter 4 looks at what it
actually means to conduct ‘nation to nation’ negotiations and re-emphasizes the
importance of addressing indigenous peoples as sovereign nations. 1 Department of Indian and Northern Affairs Canada, Information Sheet: Aboriginal Self-Government, available from < http://www.ainc-inac.gc.ca/pr/info/info105_e.html> [June 2000]; Department of Indian and Northern Affairs Canada, Federal Policy Guide – Aboriginal Self-Government: The Government of Canada's Approach to Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government, available from < http://www.ainc-inac.gc.ca/pr/pub/sg/plcy_e.html> [June 2000]; Department of Indian and Northern Affairs Canada, Notes for an Address by the Honourable Jane Stewart Minister of Indian Affairs and Northern Development on the occasion of the unveiling of Gathering Strength -- Canada’s Aboriginal Action Plan Ottawa, Ontario January 7 1998, available from <http://www.ainc-inac.gc.ca/nr/spch/1998/98j7_e.html> [January 2001]; Department of Indian and Northern Affairs Canada, Agenda for Action with First Nations, available from <http://www.ainc-inac.gc.ca/gs/agn_e.html> [January 2001]
76 Crown legislative authority over indigenous peoples and Section 35
The assertion of legislative authority over the indigenous peoples residing in the lands
now called Canada was the Crown’s initial and most profound act of domestication. A
common colonial practice of many modern-day First World nations, assuming the mantle
of legal and legislative authority over indigenous peoples disregarded existing indigenous
governance structures and imposed a governmental regime without the consent or
participation of indigenous peoples.2 In Canada, Section 91(24) of the Constitution Act,
1867 (formerly the British North America Act, 1867) grants the federal government the
power to make laws in relation to “Indians, and lands reserved for the Indians.”3
Assigning responsibility for diplomatic relations with indigenous populations or
regulating settler conduct with indigenous peoples is certainly within the prerogative of
any government. However, in the Constitution Act, 1867 and subsequent legislation
(most notably the Indian Act4), the newly formed Dominion of Canada did far more.
Asserting regulatory authority over indigenous nations, the Crown passed legislation that
invaded every aspect of native life, including cultural practices, economic activity,
lifestyle, and the raising of children. 5 Today, the federal government’s s.91(24) power to
govern indigenous peoples is largely unquestioned – and serves as the basis for the
domestication of indigenous issues in Canada.
2 See Peter W. Hogg, Constitutional Law of Canada (Toronto: Carswell, 1997), Chapter 2 and Brian Slattery, "Aboriginal Sovereignty and Imperial Claims," Osgoode Hall Law Journal 29 (1991): 681-703 discussed below. Hogg notes that British common law distinguished between colonies acquired by settlement and conquest. In the case of conquest, the “law of the conquered people continued in force” while in the case of settlement, “the settles brought with them English law, and this became the initial law of the colony.” (2.1) In British North America, these rules “were often applied in disregard of the existence of the aboriginal peoples, who were in possession of much of British North American before the arrival of Europeans.” (Ibid) 3 For a detailed discussion of Aboriginal Peoples and the Canadian Constitution, see the latest edition of Peter W. Hogg, Constitutional Law of Canada (Toronto: Carswell). All editions of Hogg’s text retain the same section numbers quoted below. 4 Indian Act, R.S.C. 1985, cI-5. The recent reference for this Act should not suggest that it is a new piece of legislation. The Act was originally drafted in 1876 and has since undergone many revisions. 5 For more on the Indian Act and its affect on the lives of the indigenous peoples within Canada see Royal Commission on Aboriginal Peoples, Final Report of the Royal Commission on Aboriginal Peoples, vol. 1, Looking Forward, Looking Back , “Chapter 9- The Indian Act: Oppressive Measures,” available from <http://www.indigenous.bc.ca/v1/Vol1Ch9s9tos9.14.asp> [January 2001]. Hereafter, the Royal Commission’s Final Report will be referred to as RCAP along with appropriate print or internet references.
77
The Constitution Act, 1982 placed important though frequently overestimated
limitations on the legislative power of the federal and provincial governments.6 “Part II:
Rights of the Aboriginal Peoples of Canada, Section 35” reads
(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. (2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada. (3) For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired. (4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.
Though widely heralded as a significant protection for indigenous peoples and a
constitutional guarantee of aboriginal rights, s.35 is vaguely worded and neither names
particular aboriginal and treaty rights nor defines these terms. Judicial rulings since 1982
have proven that the recognition and affirmation constitutionally protected in s.35 sets
only internal limits on the functioning of the governmental institutions and bureaucracies
of Canada. In the same way that a person may self-regulate his or her diet by not eating
itself. Howerver, just as an individual may decide to resume chocolate consumption, the
limitations imposed by s.35 are at the mercy of the Crown who assumed them.
Constitutional scholars have noted that since the events surrounding patriation and
the demanding amendment processes outlined in Part V of the Constitution Act, 1982, the
Constitution of Canada has become virtually unamendable.7 This view certainly suggests
that s.35 will not be easy to repeal and that its protections are now a permanent part of the
6 For more on patriation see Hogg, 3.5 & 4.8(a). 7 For details on the five amending procedures outlined in Part V, see Hogg, Chapter 4. Commenting on the new procedures, Hogg states, “This chapter [describing the amendment procedures] should not be permitted to end on a note that suggests flexibility and responsiveness on the part of the new amending procedures. It will be difficult to secure any amendment to the Constitution, because of the high level of agreement required by the general amending procedure.” [Hogg, 4.8(d)] Christopher Manfridi also argues that “[the Charter of Rights and Freedoms] has changed the Dynamics of institutional design in Canada in a way that makes formal constitutional modification virtually impossible.” (Manfridi, “The Charter and Federalism: A Response to Professor Balthazar,” The McGill Institute for the Study of Canada, available at <http://www.arts.mcgill.ca/programs/misc/manfred.htm>. [March 30, 2000]).
78 Canadian political landscape. However, Crown ability to unilaterally alter s.35 is just one
of the section’s problematic aspects. The courts have played a pivotal role in defining the
term “aboriginal rights” and in determining the boundaries of permissible Crown action.
To return to the diet analogy, the Crown has decided to give up chocolate and committed
itself to losing weight. The courts’ job is to let the Crown know whether eating chocolate
cake and drinking a chocolate flavored milkshake are permissible under its nutritional
regime, that is whether these items fall under the chocolate restriction or violate the goal
of losing weight.
That’s about as far as I can take the diet analogy, except to predictably comment
that this arrangement allows the Crown to have its cake and eat it too. The courts are,
after all, committed to upholding the laws of Canada, and that means accepting important
Crown tenets concerning sovereignty and the rights of indigenous peoples, and allowing
Canada to directly and indirectly decide the limits of its self- imposed ‘diet.’
The Supreme Court and Aboriginal Rights
R. v. Sparrow: Allowing infringement
An excellent example of the duel potential of s.35 and of the courts’ vital role in
legitimizing Crown policy is the Supreme Court’s ruling regarding federal infringement
of s.35(1) protected aboriginal rights. The very fact that the Canadian judicial system is
able to speak about ‘infringing’ on a constitutionally protected right is a reminder that
‘aboriginal rights’ are at the mercy of their creator.
Prior to their protection through s.35, aboriginal rights were recognized under
common law but, without constitutional protection, could be extinguished or regulated by
parliament at any time.8 Even after 1982, it was unclear which rights were ‘existing’ and
therefore protected by s.35 until the 1990 Supreme Court decision in Sparrow v. the
Queen,9 an aboriginal fishing rights case. In an important reversal of previous court
precedent, Sparrow declared that the Crown must prove that in enacting the legislation or
regulations in question, it had a “clear and plain intention” to extinguish an aboriginal
right. Because the Crown’s legislative and regulatory reach is so broad and touches
8 R. v. Kruger and Manuel [1978] 1 S.C.R. 104 at para. 112. 9 R. v. Sparrow [1990] 1. S.C.R. 1075. Hereafter, Sparrow.
79 almost every aspect of traditional and contemporary aboriginal resource use and
management practices, Sparrrow offered an important protection for aboriginal rights;
the Crown could not extinguish an aboriginal right through casual regulation.
Having rejected the Crown’s ability to freely extinguish an aboriginal right, the
Court next considered whether the Crown had the power to infringe on existing
aboriginal rights. Describing the intent of s.35 “to give real protection to aboriginal and
treaty rights in the modern context of managing competing claims to finite resources,”10
the Court attempted to navigate between the two virtually polar opposite views expressed
by the litigants. On the one hand, the Crown argued that “there were no existing
aboriginal and treaty rights immune to regulation” while on the other, Sparrow argued
that “only First Nations could regulate the exercise of their rights, except in emergency
situations.”11
These two viewpoints well represent the fundamental differences between both
sides. The conflict between indigenous claims and Crown claims to land and resources
are based on the reality of “finite resources,” whether land, fish, or capitol. The Crown
asserts absolute control over the resources and lands within its claimed borders while
indigenous peoples, considering themselves to be nations, similarly assert control over
their territories and the freedom to realize their rights as people. When two nations have
a resource or territorial dispute, the typical alternative to war is the negotiation of a
mutually acceptable agreement. Indeed, the Supreme Court has urged as much.
Or at least they have urged negotiation. The courts have not stepped back and
declined to rule domestically on a dispute between nations. Nor have they noted that
their ruling on such disputes are only domestic advisories for what are inter-national
(between nations) affairs, as they have done elsewhere.12 The court instead speaks of
balancing aboriginal rights with the needs of the larger Canadian community and
reconciling federal power with federal duty towards indigenous peoples while leaving the
10 Bill Henderson, “A Brief Introduction to Aboriginal Law in Canada”; available from, <http://www.bloorstreet.com/200block/bintro.htm> [September 2000]. Hereafter, Henderson, bloorstreet.com. 11 Henderson, bloorstreet.com. See Sparrow, para. 63. 12 See Reference re Secession of Quebec, [1998] 2 S.C.R. 217 and commentary below.
80 principle assumption of Crown sovereignty unquestioned.13 Building on the idea of
reconciliation and accepting the right of the Crown to infringe as introduced in Sparrow,
R. v. Gladstone,14 a 1996 Supreme Court case, effectively summarizes the Court’s view:
Because, however, distinctive aboriginal societies exist within, and are a part of, a broader social, political and economic community, over which the Crown is sovereign, there are circumstances in which, in order to pursue objectives of compelling and substantial importance to the community as a whole (taking into account the fact that aboriginal societies are a part of that community), some limitation of those rights will be justifiable. Aboriginal rights are a necessary part of the reconciliation of aboriginal societies with the broader political community of which they are a part; limits placed on those rights are, where the objectives furthered by those limits are of sufficient importance to the broader community as a whole, equally a necessary part of that reconciliation. 15
The Court has identified reconciliation as the key and balancing aboriginal rights with the
needs of the Canadian nation-state as the goal. However, the Court stops far short of
requiring that these ends be achieved through negotiations between the Canadian nation-
state and indigenous peoples as equals. Of course, balancing and compromise must
occur whenever land and resources are shared (and even, for that matter, when they are
not16) but when an arm of the Crown (one of the two parties involved in the dispute)
determines how this balancing is to occur by defining the allowable infringements on
aboriginal rights, there is no negotiation, and there is certainly no recognition of
indigenous nationhood. The Court does say that ‘taking account’ of aboriginal rights
includes consultation and consideration of the welfare of the band,17 but the judicial
branch is not requiring negotiations between equals.
13 See, eg, Sparrow, para. 69-83. 14 R. v. Gladstone (1996) 2 S.C.R. 723. Hereafter, Gladstone. 15 Gladstone, para. 73 (emphasis in the original). 16 Iris Manrion Young argues that under contemporary conditions of global interdependence, obligations of justice extend beyond co-nationals or members of same nation-state and rather extend globally. “If the scope of democratic political institutions should correspond to the scope of obligations of justice, then there ought to be more global institutional capacity to govern relations and interactions among the world’s peoples.” (Young, Chapter 7, 2) 17 Gladstone, para. 64.
81 It is worthy of note that in this particular case, the lawyers defending Sparrow did
not argue that a domestic court was an appropriate forum to adjudicate disputes between
sovereign nations. Nor did they challenge any of the problematic Crown tenets discussed
here; rather they argued for their rights as “First Nations.” Indigenous peoples taking
their struggle to domestic courts usually accept the paradigm within which the court is
operating, which in this case means s.35, delegated powers, and protection of domestic
“First Nations.” Even judicial wins in the highest courts of settler societies come with a
downside: a reminder of the subordinate place of native societies within the larger settler
societies in which they are embedded, and of their dependence on the courts that
pronounce upon their rights in that larger society. 18
Building on Sparrow’s precedent: Onus of proof
The importance of the Sparrow decision cannot be understated. Through its ruling, the
Court set important precedents that would be used and developed in subsequent
decisions. Fundamentally, as noted above, the judiciary once again accepted the
authority to adjudicate the dispute, a patent non-acceptance of indigenous nationhood and
accepted Crown sovereignty at face value.
In Sparrow, the Court also set the precedent of leaving the onus of proof for the
existence of an aboriginal right on the aboriginal claimant, or claimants. The Crown
assumed the authority to judge the cultures and traditions of a people 19 but Sparrow did
not deal in detail with the level or types of proof required because it accepted the lower
court ruling that aboriginal title existed. In R. v. Van der Peet,20 a case the Supreme
Court heard six years later, the Court would clarify the demanding requirements entailed
in the burden of proof. Van der Peet ruled
18 Peter Russell, "High Courts and the Rights of Aboriginal Peoples: the Limits of Judicial Independence," Saskatchewan Law Review 61, no. 2 (1998): 247. For more on the confines of judicial thought on aboriginal peoples see Patrick Macklem, “Ethnonationalism, Aboriginal Identities and the Law,” in Ethnicity And Aboriginality: Case Studies in Ethnonationalism, ed. Michael D. Levin (Toronto: University of Toronto Press, 1993) and Michael Asch and Catherine Bell, “Challenging Assumptions: The Impact of Precedent in Aboriginal Rights Legislation,” in Essays on Law, Equity, and Respect of Difference, ed. Michael Asch (Vancouver: UBC Press, 1997). 19 The Court made this determination without much aid from oral tradition which were not fully incorporated into the judicial toolbox until Delgamuukw v. British Columbia [1997] 3 S.C.R. 1010. 20 R. v Van der Peet (1996) 2 S.C.R. 507. Hereafter, Van der Peet.
82
[that] the test for identifying the aboriginal rights recognized and affirmed by s.35(1) must be directed at identifying the crucial elements of those pre-existing distinctive societies. It must, in other words, aim at identifying the practices, traditions, and customs central to the aboriginal societies that existed in North America prior to contact with Europeans.21
In order to be recognized as an aboriginal right, “an activity must be an element of a
practice, custom or tradition integral to the distinctive culture of the aboriginal group
claiming the right.”22
Forced to examine the scope of an aboriginal right protected by s.35(1) in a way
that was not required in Sparrow, the Court in Van der Peet based aboriginal rights on the
“distinctiveness” of aboriginal peoples rather than on the rights aboriginal people
possessed as nations before and after the arrival of Europeans. The Court’s use of
distinctiveness focuses on cultural traits and an advanced protection of multiculturalism
rather than on historical facts, the norms of international law or recognition and
facilitation of nationhood.
Self-government “within the current constitutional framework”
The Crown’s exclusive preference for delegated aboriginal rights manifests itself most
clearly in what has become an idée fixe for the Crown: aboriginal self-government. As
long ago as 1984, a well respected trio of indigenous rights scholars, Anthony Long,
Leroy Little Bear, and Menno Boldt, commented that “self-government has emerged as a
pivotal concern in the quest by Canada’s indigenous peoples for a redefined role within
the confederation.”23 Indeed, aboriginal self-government can seem to be a panacea, able
to address indigenous demands for self-determination, resolve disputes over territories
vital to natural resource based provincial economies, and decrease federal expenditures
on aboriginal peoples. An examination of Crown policy surrounding self-determination
gleaned from public documents such as the federal information sheet on Aboriginal Self-
21 Ibid., para. 44. 22 Ibid., para. 46. 23 Menno Boldt, Leroy Little Bear, and J. Anthony Long, "Federal Indian Policy and Indian Self-government in Canada,” in Pathways to Self-Determination: Canadian Indians and the Canadian State, ed. Leroy Little Bear, Menno Bolt, and J. Anthony Long (Buffalo: University of Toronto Press, 1984), 69.
83 Government, the Federal Policy Guide to Aboriginal Self-government, the Honourable
Jane Stewart's address on the occasion of the unveiling of Gathering Strength: Canada's
Aboriginal Action Plan, and the federal Agenda for Action with First Nations yields some
surprising initial results.24 For example, the Crown recognizes “the inherent right of self-
government for aboriginal peoples” and “supports the recognition of a right to self-
determination for indigenous peoples.” As evidenced by the Nisga’a Final Agreement,
however, the Crown establishes clear parameters within which these rights must be
recognized and remains unwilling to accept indigenous nationhood and address
indigenous sovereignty and self-determination accordingly. Within these confines, the
self-government offered by the Crown involves only delegated powers. As a result, the
processes in place to negotiate self-government regimes do not engage the decolonization
process needed to redress violations of the norm of self-determination.
Crown policy: Self-determination and self-government in the domestic realm
The federal government recognizes that First Nations and Inuit have been designing and
living under systems of government particular to their own needs for thousands of years,
long before the arrival of Europeans in Canada. It is within this historical tradition of
governance that the federal Crown locates Aboriginal self-governance at its most basic
level. The federal government also recognizes that colonial governments "signed treaties
with many First Nations peoples” and that the aim of these treaties was "to ensure
friendship between First Nations and European colonists and to share lands and
resources."25 Noticeably absent from the government's list of sources of the inherent
right is any mention of sovereignty or self-determination.
The right to self-government, however, is also derived directly from the right of
self-determination as one of the many possible expressions of that right. 26 The federal
Agenda for Action describes the federal viewpoint on self-determination:
The federal government is committed to working out government-to-government relationships at an agreed-upon pace acceptable to First Nations. These government-
24 See Chapter 4, footnote 1. 25 Federal Information Sheet on Self-governance, internet. 26 RCAP, vol. II, part 1, chap. 3, 164 & 174.
84
to-government relationships will be consistent with the treaties, the recognition of the inherent right of self-government, Aboriginal title, and Aboriginal and treaty rights under section 35 of the Constitution Act, 1982. Furthermore, in the international context, Canada supports the recognition of a right to self-determination for indigenous peoples which respects the political, constitutional, and territorial integrity of democratic states.27
Self-determination in the Crown’s view is carefully separated from self-government.
Self-government will be recognized for aboriginal peoples along with other aboriginal
rights “as an existing right within s.35 of the Constitution Act, 1982.”28 As discussed
above in the context of other aboriginal rights, s.35 is controlled by the Crown and
placing self-government squarely within s.35 allows the Crown to control the expression
of this inherent right. Despite the international implications of self-determination and its
place as a right guaranteed by the international human rights regime at the United
Nations, the Crown imposes limits on the way in which indigenous peoples can self-
determine by forcing indigenous peoples to realize self-government under s.35 and the
current Canadian political system. Self-government, a formal expression of self-
determination, becomes ‘just’ another ‘right’ under s.35.
The Nisga’a Final Agreement, which was signed into law in the year 2000,29
offers an excellent opportunity to examine how federal assumptions regarding the proper
place of aboriginal self-government in Canada manifest themselves in treaties and in
treaty negotiations; in other words, how the words of federal policy translate into action
at the negotiating table. This analysis is of more than mere academic interest.
Negotiations of one form or another are an essential part of addressing and resolving the
claims of indigenous peoples in Canada. If negotiations are unfair or unjust, or if parties
arrive at the negotiating table unwilling to openly discuss their fundamentally different
understandings, a mutually acceptable and lasting resolution will never be achieved. Or 27 Agenda for Action with First Nations, internet 28 Federal Policy Guide- Aboriginal Self-government, internet. 29 Throughout the discussion below, I will argue that the Nisga'a Final Agreement gives very little real power to the Nisga'a nation. Even as I make this argument, however, I recognize and acknowledge that the Nisga'a as a nation have accepted this treaty and the provisions in it. The essence of self-determination and nationhood is the ability to make choices, as a people, that affect political, cultural, and economic futures.
85 if a resolution is reached under these conditions the agreement will still fundamentally
deny indigenous sovereignty and nationhood, as is the case with the Nisga’a Final
Agreement.
Accepting section 35 and non-recognition of nationhood
Any negotiation involves two sides, each with the ir own understandings, values, beliefs,
goals, mandates, and priorities, coming together with the stated goal of reaching
agreement on certain contested issues. Though a discussion of the assumptions and
hopes that the Nisga'a Nation brought to negotiations with the federal government is
beyond the scope of this paper,30 this section will examine the fundamental tenets of
Crown policy brought to negotiations. It is perhaps unsurprising to find these tenets
serving as the basis for many of the provisions in the final product of negotiations with
the Nisga’a.
According to the Crown position, the inherent right of Aboriginal people to self-
government (and indeed all their other aboriginal rights in Canada) is entirely vested in
s.35 and to a certain extent, an aboriginal nation sharing a negotiation table with the
Crown must accept that premise. In signing on to the Agreement, the Nisga'a have given
up their rights under s.35 and completely vested them in the Final Agreement itself,
limiting their rights to those contained in the accord. The federal government's
publication, the Nisga'a Final Agreement in brief, summarizes this transference:
The Nisga’a aboriginal rights under section 35 of the Canadian constitution are modified into treaty rights. These rights are exhaustively defined in the treaty. It constitutes the full and final settlement of those aboriginal rights, including aboriginal title. Any other aboriginal rights that are determined to have existed, or may exist in the future, are released by the Nisga’a.31
This paragraph is an accurate summary of four paragraphs of the Agreement.
30 For commentary on the process from the perspective of the Nisga’a Nation, see their website at http://www.ntc.bc.ca. 31 From the Nisga'a Final Agreement in Brief as published by the British Columbia Ministry of Aboriginal Affairs Communications Branch.
86
2.22 This Agreement constitutes the full and final settlement in respect of the aboriginal rights, including aboriginal title, in Canada of the Nisga’a Nation. 2.23 This Agreement exhaustively sets out Nisga’a section 35 rights, the geographic extent of those rights, and the limitations to those rights, to which the Parties have agreed, and those rights are: the aboriginal rights, including aboriginal title, as modified by this Agreement, in Canada of the Nisga’a Nation and its people in and to Nisga’a Lands and other lands and resources in Canada; the jurisdictions, authorities, and rights of Nisga’a Government; and the other Nisga’a section 35 rights. 2.24 Notwithstanding the common law, as a result of this Agreement and the settlement legislation, the aboriginal rights, including the aboriginal title, of the Nisga’a Nation, as they existed anywhere in Canada before the effective date, including their attributes and geographic extent, are modified, and continue as modified, as set out in this Agreement. 2.26 If, despite this Agreement and the settlement legislation, the Nisga’a Nation has an aboriginal right, including aboriginal title, in Canada, that is other than, or different in attributes or geographical extent from, the Nisga’a section 35 rights as set out in this Agreement, the Nisga’a Nation releases that aboriginal right to Canada to the extent that the aboriginal right is other than, or different in attributes or geographical extent from, the Nisga’a section 35 rights as set out in this Agreement.
This litigious passage from the Final Agreement "exhaustively sets out" Nisga'a s.35
rights and effectively modifies any other aboriginal rights the Nisga'a may have in the
eyes of the Canadian federal and provincial governments. Nowhere in the Agreement is
self-determination or sovereignty mentioned, and by accepting that their Aboriginal
rights exist only as outlined in the Agreement, the Nisga'a have, at least from the
government's viewpoint, virtually abandoned the hope for recognition of those rights left
unmentioned.
Renegotiation and matters not included in the Agreement
In the debates surrounding the Nisga'a Final Agreement, much has been made of the
provisions which seem to allow for renegotiation of the Agreement should British
Columbia (BC) or Canada enter into a governance or land claims agreement with another
Aboriginal people. Also, given the instrumental role that the judiciary has played in
forcing the government to recognize aboriginal rights, many argue that even rights which
do not explicitly appear in the Agreement, such as self-determination, could be found to
exist through judicial scrutiny. The sections of the Agreement quoted above, however,
87 repeatedly stress its finality and seem to contradict any hope that renegotiation would
expand on the Agreement's specific recital of Nisga'a rights. Paragraph 35 of chapter 2
lays out the basic circumstances for renegotiation:
2.35 If Canada or British Columbia enters into a treaty or a land claims agreement, within the meaning of sections 25 and 35 of the Constitution Act, 1982, with another aboriginal people, and that treaty or land claims agreement adversely affects Nisga’a section 35 rights as set out in this Agreement: a. Canada or British Columbia, or both, as the case may be, will provide the Nisga’a Nation with additional or replacement rights or other appropriate remedies; b. at the request of the Nisga’a Nation, the Parties will negotiate and attempt to reach agreement on the provision of those additional or replacement rights or other appropriate remedies; and c. if the Parties are unable to reach agreement on the provision of the additional or replacement rights or other appropriate remedies, the provision of those additional or replacement rights or remedies will be determined in accordance with Stage Three of the Dispute Resolution Chapter.
Firstly, 2.35 says nothing about renegotiating agreement provisions in order to upgrade
Nisga'a rights or privileges to make them comparable to those guaranteed to other
Aboriginal peoples through similar negotiations. The exact wording used is "adversely
affects Nisga'a section 35 rights as set out in this Agreement." If Canada and BC enter
into an agreement with another First Nation, the Nisga’a could conceivably argue that the
amount of the monetary awards and benefits, the percentage of traditional land retained,
or the nature of the rights included adversely affect Nisga’a rights. The federal and
provincial governments would be likely to disagree with this interpretation of 2.35 and
argue that the provision is intended to remedy only direct infringements on Nisga'a rights,
for example an agreement that includes resources sharing with the Nisga’a. Another First
Nation receiving a "better deal" than the Nisga'a does not seem to necessarily meet the
requirements for renegotiation.
Secondly, the language of the treaty seems to try to keep the courts out of the
dispute resolution process. The federal summary sheet describes the dispute resolution
process as follows:
If the parties disagree over interpretation or implementation of the Agreement, they will have access to a dispute resolution process set out in the Agreement. The four-stage process consists of informal talks, collaborative
88
negotiations, mediation and arbitration. If these efforts do not resolve the dispute, any one of the parties may take it to the Supreme Court of British Columbia for resolution. 32
At the end of the four stage dispute resolution process, the Nisga'a can eventually appeal
an arbitral award to the Supreme Court of Canada, yet the potential benefits of litigation
are severely limited by the conclusive and final language of the Agreement itself as well
as by the length and complexity of the negotiations process.33
Using the courts only as a final resort is understandable given that judicial
decisions concerning treaty rights and land title have repeatedly urged that such matters
be settled through negotiation rather than litigation. The courts would be loath to become
a forum of debate over the rights implicit in ‘modern day treaties’. However, by
decreasing the accessibility of the courts, the Agreement also limits the resources from
which the Nisga’a can draw to resolve disagreements with its federal or provincial
Agreement partners. Given that a substantial number of the Agreement sections
eventually come under Crown paramountcy, this focus on one organ of the government
seems potentially problematic.
In addition, the dispute resolution process is designed to deal with interpreting
aspects of the agreement or addressing perceived breaches in the Agreement. The
process offers little resolution for rights not included in the treaty, effectively locking in
Nisga'a treaty rights without allowing those rights to evolve over time along with
understandings of human rights or the discovery of new resources on Aboriginal lands.
This finality becomes even more important in light of Chapter 1, section 13 of the
Agreement.
1.13 Federal and provincial laws apply to the Nisga’a Nation, Nisga’a Villages, Nisga’a Institutions, Nisga’a Corporations, Nisga’a citizens, Nisga’a Lands, and Nisga’a Fee Simple Lands, but: a. in the event of an inconsistency or conflict between this Agreement and the provisions of any federal or provincial law, this Agreement will prevail to the extent of the inconsistency or conflict; and
32 Ibid. 33 In 1887, Nisga'a chiefs traveled to Victoria to demand recognition of title, negotiation of treaties and self-government. Over a hundred years later, in 1976, Canada began negotiations with the Nisga’a Tribal council. In 1990, British Columbia formally joined negotiations and in 1999, the Final Agreement was signed by the three parties. For a more comprehensive timeline, see Department of Indian and Northern Affairs Canada http://www.ainc-inac.gc.ca/nr/prs/s -d1999/99158ch.html [Jan 2001].
89
b. in the event of an inconsistency or conflict between settlement legislation and the provisions of any other federal or provincial law, the settlement legislation will prevail to the extent of the inconsistency or conflict.
Just as the rights of the Nisga'a people are exhaustively described in the Agreement, so
too are the areas of Nisga'a jurisdiction; laws passed by the federal or provincial
governments concerning any matters which are not addressed in the Agreement will
automatically have paramountcy over Nisga'a laws. The Nisga’a depend on the good will
of the government to gain jurisdiction in any areas not outlined in the treaty through the
dispute resolution process and have agreed to accept any future legislation passed by the
Crown on matters not covered in the treaty.
Legislative jurisdiction: Chapter 8 - Fisheries
The reliance of the Nisga’a on the Crown for forbearance is evidenced in the Fisheries
Chapter of the Agreement. An analysis of the legislative authority granted therein reveals
that though the Nisga'a have many self-governing powers, their authority is still subject
to a management plan or annua l plan that is itself subject to government approval. In the
same way that the Nisga'a have vested the totality of their Aboriginal rights in a Crown
document based on Crown understandings, so too have they left much of their authority
as a self-governing nation under the ultimate control of the Crown leaving themselves
dependant on its good will for the continuance of their right to self-government. Most
importantly, the authority the Nisga’a hold under the agreement is delegated from the
Crown and not derived from their status as sovereign nations. The sections dealing
specifically with paramountcy of laws are 8.71, 8.73, and 8.92. Of these, section 92
serves as an interesting example of the ultimate authority of the Crown.
While the majority of Chapter 8’s one-hundred and seventeen sections deal with
the powers of the Nisga’a Lisims government in the fisheries area, section 92 specifically
addresses “federal and provincial laws of general application.” The section suggests that
the Nisga’a have some protection for unilateral Crown action by explicitly stating that in
the event of an "inconsistency between a Nisga’a annual fishing plan and a federal or
provincial law of general application, the Nisga’a annual fishing plan prevails". Most
90 other sections in this chapter also stipulate that the Nisga’alaws must be consistent with
the Harvest Agreement and/or the annual fishing plans. Nisga’a control over their own
legislative powers and depend largely on the level of meaningful participation then they
have in the drafting of these agreements.
The Harvest Agreement and its creation are discussed in sections 21-27 of the
fisheries chapter. The Harvest Agreement must be redrafted every twenty-five years and
includes the allocations of fish, provisions for harvest monitoring, fisheries management,
dispute resolution, determination of overages and underages, and harvest and disposition
of fish. Section 8.24 clarifies that "the Harvest Agreement is not intended to be a treaty
or land claims agreement, and it is not intended to recognize or affirm aboriginal or treaty
rights, within the meaning of sections 25 or 35 of the Constitution Act, 1982". The
Harvest Agreement is thus not constitutionally protected under s.35 as an ‘aboriginal
right’ or a ‘treaty right.’ This lack of constitutional protection means that any aspects of
the treaty included in the Harvest Agreement could be changed or eliminated without the
complex amendment process required to alter contitutionally entrenched documents.
Also, 8.25 provides that the Minister will implement the Harvest Agreement by either
issuing licenses to Nisga’a Lisims Government or by other means under federal or
provincial laws, both of which can be taken away without rigorous process.
Per section 8.90, the minister also has final approval on all annual fishing plans as
drafted by the Joint Fisheries Management Committee (JFCM). The JFCM is charged
with reviewing the plan per section 8.88. Composed of both federal and Nisga’a
members, the JFMC offers a real chance for negotiation and regular renewal of the
fishing rights that are part of the treaty. Such negotiations, however, depend on the good
faith of the government. And as provided for in 8.81, the Agreement seems to return a
great deal of the final decision making power to the Minister. The JFMC, this section
states, "whenever possible…will carry out its responsibilities by consensus of the
members responsible for each function. If there is no consensus, the Joint Fisheries
Management Committee will submit the recommendations or advice of each Party’s
representatives." Per Section 8.79, the Nisga'a have equal representation on the JFMC,
but with the Minister making final decisions, the recommendations of Nisga’a members
91 or the combined proposal of JFMC itself can be easily ignored or overlooked once
forwarded.
Conclusion: sovereignty in one’s own sphere
The Nisga'a Final Agreement allowed the federal government to enact its beliefs and
assumptions about Aboriginal self-government. The issues of self-determination and
sovereignty are carefully avoided and, most importantly as a precedent for indigenous
peoples seeking self-determination, indigenous nationhood is not recognized. Strongly
encouraged to negotiate native claims to Aboriginal title by the courts and recognizing
the need to somehow articulate the rights granted under s.35, the Crown has been able to
negotiate an agreement where aboriginal rights are “recognized and affirmed” by their
final and exhaustive articulation in the Agreement. Instead of an agreement that
recognizes the Nisga’a as a nation and adjusts the distribution of powering Canada
accordingly, the traditional divisions of power between the federal and provincial
governments remain virtually unchanged.
At the root of Canada's federal system, the division of powers between the federal
and provincial governments protects both from unilateral action by the other; both
provincial legislatures and the federal parliament are sovereign in their own spheres. The
Nisga’a Final Agreement certainly establishes a governing body with powers distinctly
different from provincial and municipal authority but the Nisga'a do not have sovereignty
in their own sphere. Rather, the analysis above shows that much of their authority is
vested in documents or agreements that depend on the good will of the Crown.
In an ideal world, the good will of the Crown would be enough to ensure flexible,
innovative and vibrant Nisga’a governance even under the delegated powers of the
agreement. Historical precedents and the unaltered underlying assumptions of the Crown
concerning Aboriginal self-determination and self-government, however, suggest that it
is not. In his study on federal systems and the accommodation of distinct groups, Ronald
Watts offers an important caution.
Experience in other federations suggests that the sharing of powers through concurrent jurisdiction may contribute to intergovernmental cooperation for service delivery, a point that might be borne in mind in designing the jurisdiction of
92
units of Aboriginal self-government that are created. However, when federal powers are paramount within areas of concurrent jurisdiction, concurrency may prove to be a recipe for progressive centralization. The United States, Australia and Germany have provided examples of this.34
In the case of the Nisga’a, not only may concurrent powers become increasingly
centralized but, without protection from Crown power, delegated indigenous self-
governing powers will also be at risk of unilateral amendment.
The Supreme Court and self-government
As of 1997, the Supreme Court has refused to rule on aboriginal self-government and in
doing so has implicitly endorsed Crown policy. Two cases in particular, R. v.
Pamajewan35 and Delgamuukw v. British Columbia clearly show the Court’s reluctance
to address self-government, despite having a clear opportunity to do so. The Court’s
reasons for avoiding this issue are certainly complex and manifold, but the reluctance to
rule or even comment on self-government is at least partially due to the perceived threat
of self-governance to the sovereignty of the Crown in Canada.
R. v. Pamajewon
R. v. Pamjewon addressed by-laws dealing with lotteries passed by both the Shawanaga
and the Eagle Lake First Nations. Neither by- law was passed pursuant to s.81 of the
Indian Act and neither First Nation possessed the appropriate provincial licenses
authorizing such gambling operations.36 On appeal, the Shawanaga First Nation asserted
an inherent right to self-government while the Eagle Lake First Nation asserted a right to
be self-regulating in its economic activities.37 Considering the cases together, the Court
framed the issue on appeal as “whether the conduct of high stakes gambling by the
Shawanaga and Eagle Lake First Nations falls within the scope of the aboriginal rights 34 Ronald L. Watts, “Federal Systems and Accommodation of Distinct Groups: A Comparative Survey of Institutional Arrangements for Aboriginal peoples,” Institute of Intergovernmental Relations Working Paper Series [1998(3)], available from <http://qsilver.queensu.ca/iigr/Working_Papers_Series/Watts_98(3).html>. [July 2000] Hereafter, Watts, “Accommodation of Distinct Groups.” 35 R. v. Pamajewon [1996] 2 S.C.R. 821. Hereafter, Pamajewon. 36 Pamajewon, page 821. 37 Ibid.
93 recognized and affirmed by s. 35(1) of the Constitution Act, 1982.”38 In its ruling, the
Court first theoretically assumed that s.35(1) included self-government. It then turned to
the standard set in Van der Peet – that for an activity to be an aboriginal right it must be
an element of a practice, custom, or tradition integral to the distinctive culture of the
Aboriginal group claiming the right – to find if gambling was indeed an aboriginal right
protected under s.35(1).39 Such a determination, said the Court, required looking
specifically at gambling, not a broad right to manage lands.40 Using this test, the Court
found that the evidence presented at trial did not demonstrate that gambling (or the
regulation of gambling) was an integral part of the distinctive cultures of either First
Nation at the time of contact and therefore was not protected under s.35(1).41
By beginning its discussion with gambling, the Court avoided ruling on self-
government; once gambling was excluded from s.35(1) protection, the self-government
issue, as far as the Court was concerned, was moot. Rather than basing the ruling on a
static notion of culture, reasoning from self-government (that is asking whether the
regulation of gambling is part of an inherent right to self-government) would have
generally protected self-government under s.35(1). This determination would have
enabled a much fuller discussion of gambling not only as a cultural practice but also as a
means commonly used by nations to raise funds and as an area properly legislated by a
government.
Delgamuukw v. British Columbia
In Delgamuukw, the Supreme Court once again avoids ruling on the content of s.35(1)
with respect to self-government. The Court begins by dividing the appeal into five
principle issues.42 The third issue deals with “the content of aboriginal title, how is it
protected by s.35(1) of the Constitution Act 1982, and what is required for its proof.”43
The Court takes advantage of this broad query into aboriginal title by using the question
as a stepping stone to enter into a lengthy discussion of the content and nature of 38 Ibid., para. 1. 39 Ibid., para. 23. 40 Ibid.,, para. 26 & 27. 41 Ibid., para. 28. 42 Delgamuukw v. British Columbia (1997) 3 S.C.R. 821 at para 72. 43 Ibid.
94 Aboriginal title. It is important to note that this discussion takes place despite the Court’s
statement that it cannot rule on the actual title issue on appeal. The Court states at
paragraph 109:
The parties disagree over whether the appellants have established aboriginal title to the disputed area. However, since those factual issues require a new trial, we cannot resolve that dispute in this appeal. But factual issues aside, the parties also have a more fundamental disagreement over the content of aboriginal title itself, and its reception into the Constitution by s.35(1). In order to give guidance to the judge at the new trial, it is to this issue that I will now turn. [emphasis mine]
The factual errors in the lower courts44 prevent a specific ruling on title for this appeal but
due to a “fundamental disagreement” between the two parties, the Court nevertheless
spends the next 17 pages exploring, discussing, and setting the parameters for any
subsequent lower court consideration of Aboriginal title.
After completing this lengthy analysis, the Court turns to issue #4, the narrowly
worded “has a claim to self-government been made out by the appellants?” Noting the
significant amount of time the lower courts dedicated to the question of “whether s.35(1)
can protect a right to self-government” and “what the contours of the right are,” the Court
concludes, as it did in the case of Aboriginal title, that the factual errors of the lower
courts make an appellant ruling impossible.45 However, rather than launch into an
exploration of the possible contents of a s.35(1) right to self-government or elaborating
on the question to aid the lower courts as it did in for aboriginal title, the Supreme Court
moves on to issue #5, devoting a mere two paragraphs to the self-governance question.
Justifying its cursory discussion, the Court notes that Delgamuukw may not be the
ideal test case for determining whether or not self-government is a right protected under
s.35 46 and that the parties at trial failed to “address many of the difficult conceptual
issues which surround the recognition of aboriginal self-government.” 47 Citing the
lengthy discussion given to the issue in the RCAP report, the Court said that it “received
95 little in the way of submissions that would help us to grapple with these difficult and
central issues.”48 These considerations are certainly valid. Through its decision,
however, the Court has passed up an opportunity to elaborate on the nature and general
scope of the right to self-government in s.35(1). Just as the Court’s comments regarding
aboriginal title are intended to guide future judgments, judicial commentary on the right
of self-government could be used to guide negotiations between the Crown and
indigenous peoples and in fact encourage or even demand such exchanges. The Court
has certainly been willing to address issues based on scant submissions (see, for example,
the Court’s discussion of appropriate legislative objectives in Gladstone49) as well as
issues they cannot resolve do to lack of information (see Aboriginal title in Delgamuukw
above).
Why then is the Court reluctant to rule on the right of self-government in s.35(1)
both here and in Pamajewan? The Court perhaps shares the fears that are implicit in the
legal briefs submitted to the Court by Canada and British Columbia. Canada and British
Columbia both accept that the doctrine of exhaustiveness50 should not be applicable to
Aboriginal rights cases as it eliminates all possible forms of Aboriginal self-government,
and both locate self-government in s.35(1), which they describe as a “mechanism for
preserving pre-existing cultures of Aboriginal peoples.”51 But the Crown, in right of
Canada and BC, does not accept the indigenous claim to a right to exercise self-
government over all aspects of Aboriginal society or any sort of free-standing right of
self-government. The BC factum articulates the reasoning behind these parameters:
Self-government rights potentially raise the spectre of aboriginal sovereignty and great care must be taken that not too much is read into the right of aboriginal self-
48 Ibid. 49 In Gladstone, the Supreme Court found that given the evidence provided, it could not rule on the whether or not the legislative objectives of the Crown were ‘compelling and substantial.’ Despite the fact that appropriate legislative objectives had little bearing on the case at hand, the Court nevertheless stated that “it is possible to make some general observations about the nature of the objectives that the government can pursue under the first branch of the Sparrow justification test.” (Gladstone, para. 70) 50 The doctrine of exhaustiveness basically states that all the heads of power in Canada were divided (exhaustively) between the federal and provincial levels of government with the Constitution Act 1867. 51 Delgamuukw v. the Queen. Factum of the Respondent the Attorney General of Canada, 144 and Factum of the Respondent, Her Majesty the Queen in Right of the Province of British Columbia, 317.
96
government lest the sovereignty of the Crown is undermined.52 [emphasis mine]
This then is the Crown’s greatest fear: that the Court will recognize Aboriginal self-
government rights that undermine the Crown’s sovereignty. The Court, however, is not
itself unaware of this danger. Its reluctance to rule on self-government stands as a stark
reminder of the Supreme Court’s position as a force of legitimization and continuance for
the Crown’s claim to sovereignty over the lands that we now know as Canada.
Colonial law and decolonization
The current Crown vision of the ‘ideal’ Crown-Aboriginal self-government agreement
offer little chance of decolonizing the relationship between the Crown and the indigenous
peoples within Canada and redressing the damage colonization has wreaked on
indigenous peoples and their right to self-determination. Recognizing that progress in
changing Crown policy at its source has been a painfully slow process, many indigenous
peoples have used litigation to challenge Crown actions and hasten its recognition of
aboriginal rights. The judicial holdings presented thus far have demonstrated that
pursuing recognition of aboriginal rights through the domestic Canadian legal system is
at best a doubled edged sword that makes inroads in changing Crown policy even as it
further entrenches Crown tenets.
This paper has already highlighted some of the problems with “going to court.”
Before moving on, however, it behooves us to visit some of the reasons the legal system
should not be entirely ruled out and to finally recall that as long as Canada’s legal system
retains important remnants of colonial law, it offers little hope of providing real justice to
indigenous peoples.
Avoiding all litigation means giving up an important area of political, legal and
social change. In his examination of indigenous self-determination in Western
democracies, Werther notes the important role litigation has played for indigenous groups
who are reserve based. Accompanying any reserve system (like the one in Canada) are
bureaucratic structures and institutions and a system of laws and regulations that offer a
52 Factum of the Respondent, Her Majesty the Queen in Right of the Province of British Columbia, 318.
97 political link to the center and are “available for conversion.”53 Reserve land groups have
strategically used reserve resources and their management as points of departure for
litigation and been able to achieve incremental gains in legal interpretation through
domestic courts.54 Abandoning legal mechanisms allows only the voice of the state to be
heard in courts and in effect excludes indigenous peoples from an entire realm of
Canada’s state system. 55
In addition, as John Wyte notes, "the common law is sometimes ready to
recognize a morally compelling claim as a legally binding one."56 By not going to court,
indigenous peoples deny the courts the chance to fulfill their function as a check on
Crown power. Discussing indigenous litigation, Patrick Mecklam makes a related and
frequently overlooked point that
to reduce the role of law to that of a villain in the saga of the struggle for native self-governance has the effect of ignoring the important moments, however few, in which the law has served to improve the lives of native people and forecloses a powerful source of potential social transformation…The fact that [in the courts] we do not know what will come next means that what will come next is a function of political and ethical commitment. Should law fail to improve the condition of native peoples in Canada, it will not be a function [of the law] but rather a simple failure to act.57
The “failure to act” that Mecklam notes is not simply referring to a failure of the courts to
rule in a certain manner but also encompasses two larger failures: the court’s failure to
act and challenge fundamental tenets of the Crown that deny indigenous self-
determination and nationhood and the Crown’s failure to alter these fundamental beliefs
itself and allow the courts to shift their own paradigm to incorporate these “morally
compelling claims.”
53 Werther, Self-Determination and Western dems, 51. 54 Ibid., 51 & 67. 55 James Tully made a similar point in a lecture in the Spring of 2000. 56 John D Whyte, "Indian Self-Government: A Legal Analysis," in Pathways to Self-Determination: Canadian Indians and the Canadian State, ed. Leroy Little Bear, Menno Bolt, and J. Anthony Long (Buffalo: University of Toronto Press, 1984), 104. 57 Patrick Macklem. “First Nations Self-Government and the Borders of the Canadian Legal Immigration.” McGill Law Journal 36 (1991): 394 (emphasis mine). Hereafter “Borders of Thought.”
98 The connection between fundamental Crown assumptions and the limits of the
judicial imagination highlights an essential truth of systems that have yet to be fully
decolonized: colonial law favors the colonizer. In his study of the representation of
American Indians in Western legal thought, Robert Williams argues that
law, regarded by the West as its most respected and cherished instrument of civilization, was also the West's most vital and effective instrument of empire during its genocidal conquest and colonization of the non-Western peoples of the New World.58
Law served as a mechanism to impose a certain version of truth onto peoples and
communities that included Western ideas on political theory, economics, and
constitutionalism. 59 In a formidable circular relationship, courts were created by Western
society in accordance with certain legal ideas and beliefs and were empowered by
western colonial society even as they served to legitimate and validate the very enterprise
that created and empowered them.60 Political institutions and legal regimes were thus
mutually validating and discouraged a closer examination of colonial tactics and
practices.61
Though most aspects of the British colonial system have been dismantled, the
mutual validation of political structures and courts continues in Canada to this day.
Werther notes that law universally favors the dominator62 and yet law is still favored by
many as a solution to the lack of indigenous recognition in nation-states. The “White
Man’s Indian Law,” Williams argues, has been presented as the salvation of Indians in
North America by generations of Indian law scholars yet "how can such a unilaterally
imposed system of colonizing law and power ever manage to assist Indian peoples in
their decolonization struggles and achieve justice?"63 Speaking specifically of the
Canadian context, Taiaiake Alfred argues that as long as native politics are understood
58 Robert A. Williams, The American Indian in Western Legal Thought: The Discourse of Conquest (NY: Oxford University Press, 1990), 6. Hereafter, Wiliams (1990). 59 Wiliams (1990), 6. 60 Ibid., 7-8. 61 Ibid., 8. 62 Werther, Self-Determination in Western Dems , xvii. 63 Robert A. Williams, Linking Arms Together: American Indian Treaty Visions of Law and Peace, 1600-1800 (NY: Oxford UP, 1997), 6. Hereafter, Williams (1997).
99 and practiced within the legal structure established by the state, Canada “has nothing to
fear from indigenous leaders because the basic power structure will remain intact
regardless of any victories.”64 It is not possible, Alfred argues, to use “colonial law to
undermine the existence of a colonial relationship”; there can be no justice for indigenous
peoples legally or elsewhere until their relationship with Canada is decolonized.65
The accomplishments of those involved in the struggle for indigenous rights in
Canada are worthy of respect, yet the dangers of going to court and the futility of
confronting a colonizer within a colonial paradigm are real and cannot be ignored. Court
politics and ethics are all too often constrained and defined by the current social mores.
Brown v. Board of Education, the 1954 United States Supreme Court case that finally
overturned a 1892 decision that legalized “separate but equal” facilities for white and
black Americans, was an amazing decision for many reasons, not the least of which was
that nine men handed down a unanimous decision that was far ahead of the country it
intended to affect. As a result of its unpopularity and the inability (or unwillingness) of
state and local officials to enforce school desegregation, in 1963 “the U.S. Commission
on Civil Rights reported that less than one-half of one percent of southern Negroes (sic)
attended desegregated schools.”66 Many Supreme Court decisions on Aboriginal rights to
date have been ahead of the majority of Canadians and for this the jus tices are to be
commended.
As discussed above, however, the Court has not questioned the validity of Crown
sovereignty in Canada or addressed all the legislative, political, and constitutional issues
that would result from such a query. While the Supreme Court should be held
accountable for its own actions, it will be very hard for the judiciary to question issues so
basic to the self- image of Canada without the support of political will and a change in
ethical perspective on the part of all Canadians. Certainly both litigation and social
change can progress concurrently, but the majority of Canadians have a very long way to
64 Taiaiake G. Alfred, Peace, Power, Righteousness (Ontario: Oxford UP, 1999), 47. 65 Alfred, 72 & 83. 66 Stanley, Kutler, The Supreme Court and the Constitution: Readings in American Constitutional History, 3rd edition (New York: W. W. Norton & Company, 1984), 553. For a brief summary and more on the context of Brown v Board of Education , see http://www.virtualscholar.com/cr/cr1.htm. The text of the decision is available at the Tuoro Law Center website (http://www.tourolaw.edu/ patch/Brown/).
100 go before they will accept their government's taking action in response to a Court ruling
that their home is indeed Native land.67
Negotiating nation-to-nation relationships
Working within a Crown paradigm of domestication, the Canadian judiciary has been
unable to adequately address indigenous assertions of their rights as nations. The courts
are not alone in their failure; as Chapter 1 indicated, the United Nations has also yet to
recognize indigenous self-determination. The actions of the UN and the Canadian courts
have certainly helped indigenous peoples in significant ways, and activity on the
international stage will, I believe, continue to bring results, albeit slowly and deliberately.
Hindering the efforts of both these bodies, however, are the policies and paradigms of
states and, in the context at hand, the Canadian nation-state.
A logical avenue for indigenous peoples to pursue their struggle would thus be
through communicating, negotiating, working with – in short through a relationship with
– the Canadian state. Indigenous peoples have, of course, had a relationship with their
colonizers since their arrival from Europe. If judged against the criteria of recognition of
indigenous sovereignty, nationhood and decolonization, the relationship between
indigenous peoples and non- indigenous Canadians is in need of serious repair. When
judged against these same criteria, efforts to alter this relationship have resulted in
similarly unsatisfactory results, as evidenced by the Nisga’a Final Agreement.
Self-government agreements such as the Nisga’a and legislation such as child
welfare and education initiatives have produced some significant changes in the socio-
economic welfare of some of Canada’s indigenous peoples. Werther, however, argues
that changes in government policy are a much more accurate way to judge the success of
a movement for self-determination than are changes in polity, such as a decrease in
overall poverty or increase in overall level of education. 68 Because an obvious
underlying goal of any indigenous self-determination movement is to improve the lives of
indigenous peoples, including improving healthcare, material well-being, and education,
67 With gracious thanks for the phrase to Michael Asch’s book entitled Our Home and Native Land: Aboriginal Rights and the Canadian Constitution (Toronto: Methuen, 1984). 68 Werther, Self-Determination in Western Dems , xxi.
101 the gauge Werther suggests for judging the success of a self-determination movements
may seem misapplied, yet from the perspective of indigenous nationhood, judging by
policy changes rather than on-the-ground progress has a real advantage. If the goal is to
achieve changes in state policy, for example in power distribution or judicial jurisdiction,
then what are needed are policy changes indicating a real alteration in the ideological
framework of the state. While policy changes will hopefully cause fundamental social
change (and indeed, they must be questioned if they do not) on-the-ground changes could
be achieved without altering the ideology or policy orientation of the state and reversing
the paradigm of domestication. As has been mentioned earlier, ‘throwing money’ at the
‘indigenous problem’ and achieving incremental community change is a common ploy of
a government unwilling to address key issues like sovereignty or domestication. For
example, self-government agreements give money and resources to people (on the ground
change high) while doing little to address the fundamental power structure in Canada
(policy change practically non-existent).
John Mohawk, a Haudenosaunee professor at SUNY Buffalo in the American
Studies Department, has said that “the basic fundamental truth contained [in the idea that
all human beings possess the power of rational thought and want peace] is that so long as
we believe that everybody in the world has the power to think rationally, we can
negotiate them to a position of peace."69 Many indigenous nations are similarly
committed to working with the Crown and negotiating a way to peace, mutual respect,
and justice. Unfortunately, sitting down at a negotiating table with the Crown requires
accepting certain non-negotiables that are contrary to history, justice, and the spirit of
relationship building. The British Columbia Treaty Process offers an excellent study in
the problems inherent in the Crown’s approach to ‘negotiating’ with indigenous peoples.
Certainty and static “relationships”
Formed from the recommendations made by the BC Claims Task Force in 1990, the
British Columbia Treaty Process has had very little success in producing substantial final
agreements. As of September 30, 2000, 43 of the 51 First Nations participating in
69 Quoted in Alfred, xix.
102 negotiations were in stage four of the six-stage process while only one was in stage 5.70
The Process’ lack of success at actually producing final agreements has been attributed to
many factors – the complexity of the negotiation process, the lack of party interest, the
shortage of resources and the lack of popular support, just to name a few. In reality, the
faults of the process run deeper to the fundamentally divergent understandings of the
process and its goals held by the Crown and First Nation parties. In a recent lecture, Jim
Tully identified the three main features of the treaty process: a new relationship, the
purpose of the treaty process itself, and reconciliation. The parties to negotiations have,
Tully argues, fundamentally different understandings of each of these features of the
process. 71
For both the provincial and federal Crowns involved in the tripartite negotiations,
the purpose of the Treaty Process is to define the ‘undefined’ rights of aboriginal peoples
and achieve the ‘release and surrender’ of all existing rights.72 Echoing the results of the
Nisga’a agreement, British Columbia’s Approach to Treaty Settlements: Land and
Resources policy paper clearly states that
The objective of treaty negotiations is to replace the broad-based sustenance rights recognized by the courts -- and currently covering much of British Columbia -- with clearly-defined contemporary rights. Because aboriginal rights revolve primarily around the historic use and occupation of lands and resources, in many cases the most logical and effective way of expressing these rights in modern terms will be to negotiate with respect to the ownership and management of certain lands and resources.
73
Self-government arrangements will similarly be careful to avoid any “uncertainty in
jurisdiction” and will not “create a myriad of overlapping governing structures and
decision-making bodies throughout the province.”74 Ruling out concurrent jurisdiction
70 British Columbia Treaty Commission. September 2000 Status Update, available from <http://www.bctreaty.net/updates/sept00status.html> [January 2001] 71 Tully, BC Treaty Process, 7. 72 Ibid., 9. 73 British Columbia Ministry of Aboriginal Affairs, British Columbia’s Approach to Treaty Settlements: Land and Resouces, available from <http://www.aaf.gov.bc.ca/aaf/pubs/content.htm> [March 2000] 74 British Columbia's Approach to Treaty Settlements: Self-Government, available from <http://www.aaf.gov.bc.ca/aaf/pubs/s -gsumm.htm> [March 2000]
103 and demanding that agreements reached at this time during these particular negotiations
carefully spell out all areas of jurisdiction demands a higher degree of certainty from
indigenous/non-indigenous agreements than currently exists between the federal and
provincial levels of authority within the Canadian federation.
Interpreting the two sections of the constitution where legislative powers are
divided, s.91 and s.92, preoccupied the pre-repatriation Supreme Court of Canada, and
the Judicial Committee of the Privy Council before it, indicating that the jurisdictional
boundaries of the provincial and federal governments were and are anything but secure
and clear, especially in new legislative areas that were never anticipated by the drafters of
the Constitution Act, 1867. With the help of the Courts, the federal and provincial levels
of government have successfully negotiated areas of concurrent jurisdiction for over a
hundred years. Certainly, seeking to clarify jurisdictions and negotiating over- lapping
authorities has not been easy, but the conversation has both facilitated the development of
creative solutions as well as allowed greater understanding and empathy between the two
levels of Crown authority in Canada. Demanding a high degree of certainty in treaty
negotiations is not only unrealistic, but, as exemplified by the Nisga’a Final Agreement,
will generally force First Nations to capitulate to Crown demands.
For aboriginal people, goals such as certainty and final articulation of all rights
reflect a continuation of the extinguishment policy that has been part of the federal
comprehensive claims process for years, regardless of the current name given to the
process or the language in which it is expressed. The certainty, the once-for-all
agreement the Crown hopes to gain from the treaty process, also contradicts aboriginal
understandings of reconciliation as “an ongoing activity, a continuous process of cross-
cultural dialogue over time between the partners over matters of their shared concern.”75
Discussing treaty making during the market period of the colonial era, Williams echoes
this view. Many indigenous nations understood treaties as simultaneously describing,
creating, promoting, and maintaining a shared world of normative commitments.76 These
‘normative commitments,’ such as help in time of need, mutual defense, or trade, formed
75 Tully, BC Treaty Process, 11. For indigenous leaders arguing for the importance of a full relationship with the Crown see the Royal Commission on Aboriginal Peoples on the web at http://www.indigenous.bc.ca/rcap.htm Volume 1. 76 Williams (1997), 51.
104 the basis of an ongoing relationship that had to be continually nurtured as time passed
and circumstances changed. Crown demands for certainty now try to reduce an
ethnonational claim that in part alleges violations of self-determination and questions
assertions of Crown sovereignty to a law suit. The Crown is searching for the settlement
costs that can be paid once and forgotten, not looking for a mutually nurturing
relationship that will grow and evolve. This view denies the reality of a multi-nation
state and belittles the lived experiences of indigenous peoples. Beginning the process of
decolonization requires “an ongoing…process of cross-cultural dialogue over time
between partners over matters of their shared concern.”77 The indigenous view of the end
goal of the treaty process, a new decolonized, nation-to-nation relationship, is simply not
shared by the Crown.
A new relationship: Revisiting the minority/indigenous peoples distinction
The discussion above concluded that the Crown vision of aboriginal self-government
involved authority delegated by the federal Crown and able to be taken away by its
maker. Federal focus on delegated powers and the proposed format for negotiating self-
government arrangements clearly indicate that the federal Crown considers indigenous
peoples to be minorities within Canada. The negotiations proposed by the federal
government are to be ‘government to government’ (between Canada and First Nations)
rather than ‘nation to nation’ (between equal nations seeking to co-exist within the
Canadian state).78 The limitations placed on self-determination, “which respects the
political, constitutional, and territorial integrity of democratic states,” are echoes of the
fears explored in Part I of this paper. The Information Sheet on Aboriginal Self-
Government reiterates, as a key principle of all self-government arrangements, that "self-
government will be exercised within the existing Canadian Constitution…Aboriginal
peoples will continue to be citizens of Canada and the province or territory where they
live. However, they may exercise varying degrees of jurisdiction and/or authority." 79
77 Tully, BC Treaty Process, 11. 78 Agenda for Action with First Nations, internet. 79 Federal Information Sheet on Self-governance, internet.
105 The province shares these views. British Columbia’s self-government policy
states that
The challenge of the treaty process will be to negotiate self-government arrangements which allow First Nations to participate more actively in the existing institutions of public government at the federal, provincial, regional and local levels…The fundamental interest of the provincial government in the treaty making process is that it maintains the ability to govern the province to the limits of its constitutional jurisdiction.80
The province will grant only delegated powers and is careful to affirm (and perhaps
gently remind its federal negotiating partner) that it is unwilling to ‘give up’ any of its
s.92 powers.
Offered only delegated powers and not welcomed as sovereign nations,
indigenous peoples are clearly being treated as minorities within the Canadian state.
Indigenous peoples do in fact fall under the definition for minority offered by the Special
Rapporteur of the Human Rights Sub-Commission on the Prevention of Discrimination
and the Protection of Minorities regarding the Right s of Persons belonging to Ethnic,
Religious and Linguistic Minorities:
A group numerically inferior to the rest of the population of a State, in a non-dominant position, whose members - being nationals of the State - possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, tradition, religion or language.81
The Québec Study, however, is quick to point out that the placing indigenous peoples
under this definition is not as accurate as it seems. Certainly, they argue, the term applies
to indigenous peoples but the point is of limited practical interest because they enjoy
specific and more extensive rights as indigenous peoples.82 Importantly, identity as a
80 BC’s Approach to Treaty Settlements: Self-government, internet. 81 Doc. E/CN.4/Sub.2/384/Rev.1, par 568, p. 96. 82 Québec Study, para. 3.17 & 3.18.
106 minority implies state membership, whereas indigenous does not.83 Nietschmann also
notes that “to identify a people as a minority often sacrifices their claimed national
identity to state sovereignty.”84
By entering into negotiations with the assumption that indigenous peoples are
minorities within the larger Canadian nation-state, the Crown is bringing a non-
negotiable fundamental assumption about the nature of the relationship between the
Crown and indigenous peoples. Tully argues that by unilaterally assigning indigenous
peoples to the status of a minority within a larger nation-state, the Crown allows
aboriginal peoples to enter into negotiations as subordinates only, not as equals, and
forecloses just what many aboriginal people see the negotiations as being about: defining
relationships. 85
It is no coincidence that Canada refers to indigenous peoples as minorities
whether implicitly or explicitly. It is in fact a common tactic of domesticating national
claims. This author is not prepared to pass judgment on Québec’s national claims, but
Pierre Trudeau’s reaction to Québec’s nationalism movement in the late 1960s and early
1970s offers a compelling example of Canada’s response to claims of nationhood from
‘minorities.’ Louis Balthazar offers a comprehensive analysis of this period, only
partially reprinted here:
[Trudeau] repudiated dualism, the concept of two nations or of a binational Canada, and even biculturalism…In order to unite the country and make French-speaking Quebecers feel as comfortable in all of Canada as well as in Quebec, he promoted bilingualism in all federal services across the Canadian "nation"; he never doubted that Canada was one indivisible nation. He was implicitly asking his fellow Quebecers to trade their identity as a people against the promise of bilingualism. He advanced the concept of multiculturalism, implying the recognition of various ethnic cultures in Canada, thus reducing the global culture of French-speaking Quebec to one ethnic component of the Canadian mosaic.86
83 Ibid. 84 Nietschamnn. 85 Tully, BC Treaty Process, 6. 86 Louis Balthazar, “Quebec and the ideal of Federalism,” lecture to the McGill Institute for the Study of Canada, 25 Sept 1997 (Revised version of article in Annals of the American Academy of Political and
107
Canada under Trudeau tried to use multi-culturalism and the idea of an ‘ethnic mosaic’ to
quell Québec’s demands, just as it uses select delegated self-governing powers and small
land claims to try to appease indigenous claims for self-determination.
The result of these attitudes is a pre-conceived image of the relationship that will
result from negotiations – not exactly a clean slate and an open mind. As long as
negotiations are conducted on anything other than a nation-to-nation basis, participants
do not meet as equals and the process of decolonization, which provides the historical
and theoretical grounding of negotiations, is ignored.87 For indigenous peoples, their
recognition as nations is an essential element of any new relationship with the Canadian
Crown. Accepting First Nations as nations in the full sense of the term would not only
justly allow indigenous peoples to define their existence as peoples but would also
broaden the scope of negotiations, allowing the small box into which the Crown has
placed self-government to be opened.
Overlooking fundamental disagreements to reach ‘agreement’?
Despite the unaltered Crown policy of domestication and absolute sovereignty, the
Nisga’a Final Agreement has been affirmed by the Governor General, and the BC Treaty
Process continues. The reality that many indigenous nations are still engaging the
government on these terms begs an interesting question. Can fundamental disagreements
over sovereignty and nationhood be negotiated around? Can agreement be reached
despite them? Though not discussing this question specifically, Hurst Hannum offers an
interesting example. The Sino-British agreement over post-1997 Hong Kong, he says,
was a "joint Declaration due to China's position that the status of Hong Kong is an
internal matter, not a treaty, but is considered as legally binding as a treaty under
international law."88 Interestingly, agreement does not include resolution of disagreement
over sovereignty of the city "in tacit recognition that the settlement of historic legal
Social Science (1995): 40-53). Available from <http://www.arts.mcgill.ca/programs/misc/baltha.htm>. [March 30, 2000] 87 Tully, BC Treaty Process, 6. 88 Hannum, Autonomy, Sovereignty, and Self-Determination, 136.
108 disputes had little relevance to developing a workable future for Hong Kong."89 This is
not the forum to discuss Sino-British relations or even judge Hannum’s characterization.
What’s relevant here is the example. Could this type of agreement work in Canada?
I would argue no. The reality in Canada is that ignoring the fundamental
disagreement between indigenous peoples and the Crown overwhelmingly favors the
Crown because the Crown paradigm is domestication, and the Crown has the economic
and, if needed, the military power to enforce it. Furthermore and as importantly, Canada
has already tried ignoring these ethnonational claims and the practice has neither resolved
them nor made them go away. In a chapter entitled “Papering Over the Differences,”
Will Kymlicka notes that
Canada thus far has searched for a constitutional formula that is sufficiently vague for both sides to view it as consistent with their opposing conceptions of Canadian federalism. This ‘national unity’ strategy seems to have two main elements: 1) affirming a distinct society clause and 2) emphasizing shared values as the basis for Canadian unity. 90
Neither strategy, Kymlicka argues, has worked. Kymlicka’s quote refers specifically to
Québec but s.35 could be seen as part of the same effort to ‘paper over’ the fundamental
issues of sovereignty and self-determination. Indigenous peoples look at section 35 and
see a place where their rights are recognized. The wording rather than the supposed
spirit, however, offers few such guarantees and papers over the differences in
understandings by stating what both sides can agree upon yet leaving enough unsaid so
that both sides can read into section 35 what they want to see written there. Young
accurately points out that perfectly symmetrical understanding between people
(especially between indigenous and non- indigenous peoples) is neither desirable nor
possible.91 The vastly different interpretations of historical treaties and the difficulties
89 Ibid., 137. 90 Will Kymlicka, Finding Our Way: Rethinking Ethnocultural Relations in Canada (Toronto: Oxford University Press, 1998), 147. See also 147-153. 91 In “Asymmetrical Reciprocity: On Moral Respect, Wonder, and Enlarged Thought,” in Intersecting Voices: Dilemmas of Gender, Political Philosophy, and Policy, 38-59 (Pennsylvania: Princeton University Press, 1997), Iris Marion Young notes that in everyday discussion of issues, there is a popular exhortation to look at the issues from another’s point of view. Though this strategy is considered an important move in moral discourse, problems arise, however, when this is taken as a systematized moral theory.(38) Offering
109 indigenous peoples have had obtaining recognition of treaty rights,92 however, advise
serious caution and warrant profound reservations before agreeing to disagree over
sovereignty and self-determination, and accepting anything less than movement toward a
fundamental change in Crown policy.
three stories of irreversibility where “in each case the very attempt of some to take the standpoint of others risks not affecting them.” (41) In indigenous/non-indigenous relations, she argues, non-indigenous people can never truly adopt on Native American standpoint because they lack the personal and group history. Also, the desire to take this standpoint “is at least partly motivated by a fanciful longing to compensate for a perceived cultural poverty of white society. If whites sometimes wish to enter Indian culture because of their own romanticization of Indians as having a ‘richer’ culture, then white desire to understand an Indian perspective may be a form of cultural imperialism.” (43) 92 For more on judicial interpretations of treaties between indigenous peoples and the Canadian Crown see Henderson, bloorstreet.com, particularly <http://www.bloorstreet.com/200block/brintro.htm#110>
110
CHAPTER 5: FEDERALISM: ACCOMMODATING A MULTI-NATION STATE
Introduction
Chapter 4 and its analysis of Canadian policy provide a stark reminder that the United
Nations’ narrow understanding of self-determination has been adopted by many First
World states. If the goal of the indigenous struggle is to achieve self-determination as
sovereign nations, indigenous peoples face the challenge of trying to facilitate a change in
this understanding within the political institutions and structures of Canada as well as
among its people.
Part I of this study concluded with three ideas, three tenets of a new paradigm of
indigenous-state relations, if you will, based on an expanded understanding of the norm
of self-determination. Separating self-determination from independent statehood allows
the substance of self-determination, namely choice, to be separated from particular
remedies. This separation allows all peoples to have access to the right based on the
constitutive and on-going violations of the norm of self-determination they have suffered.
The fact that all the nations of Canada share the same territory with its limited land and
resources means that independent statehood for each nation is not a viable option. Yet
continuing to alternately ignore or deny indigenous sovereign nationhood violates basic
tenets of justice and international human rights law. It also tarnishes Canada’s reputation
as a state that strives for the highest levels of fairness, justice, and equality and allows the
bitterness and unrest caused by unresolved indigenous claims to fester and grow. By
accepting an expanded conception of self-determination and by accepting indigenous
nationhood, Canada, as a state, can accommodate all the nations within its borders and
allow them to freely self-determine.
The final chapter of this study will focus on federalism as a system of governance
that can recognize and accommodate self-determination for many nations within one
state. A central government and constituent units, each of which is sovereign in its own
sphere, characterize federal systems. This arrangement allows for the flexibility
necessary to allow diverse nations to fully and uniquely self-determine while still
remaining part of larger union. The terms of each constituent unit’s union with the state
can be tailored to address particular violations of the norm of self-determination suffered
111 by the peoples in question and to suit the size, nature, and political vision of the
respective nation.
For nations sharing a territory, federalism can feature a close working relationship
between constituent units and the state government that would allow resource sharing and
mutual financial support. While a federal system would not resolve the difficult issues of
resource allocation and competing claims to ownership of particular tracks of land, the
negotiations leading to the formation of a federal union that recognizes the nations within
would necessarily address these issues in an open and frank discussion. This exchange
would benefit all parties.
Finally, Federalism is a state system that allows for the recognition of indigenous
sovereignty and nationhood through voluntary and negotiated association with a larger
state. Federalism allows nations to join together while retaining sovereignty in their own
negotiated sphere of influence. The state government does not delegate authority to its
constituent units. Rather, an entrenched document (usually a constitution) protects the
powers given to each level of government and prevents unilateral action by one level
against another. Delegated powers, which are not a mark of nationhood, need not be part
of a federal arrangement.
While a complete discussion of federalism or a detailed analysis of all possible
federal models are beyond the scope of this paper, the discussion that follows will
highlight certain federal models that are particularly relevant to the Canadian context.
Rather than attempting to be a comprehensive study, Chapter 5 aims to encourage all
Canadians to break out of a paradigm of domestication and begin envisioning a real
multi-nation Canadian state by introducing models of state formation that allow all
nations to realize the right to self-determination. As Marcel Proust said, “the real voyage
of discovery consists not in seeking new landscape but in having new eyes.”
The Québec Secession Reference and the Supreme Court on nationhood
Restructuring the Canadian state in a way that recognizes indigenous nations first
requires that the existing Canadian nation-state acknowledge the nations within.
Accepting this reality is as simple as a speech from the throne and as difficult as changing
the centuries old attitudes and institutions which support its denial. Brought to the
112 Supreme Court in 1998, the Reference re: Québec Secession1 was intended to deal with
issues of nationhood and sovereignty in terms of the province of Québec, not indigenous
peoples. Aspects of the ruling, however, speak directly to the concerns of indigenous
peoples in Canada not only in terms of creative constitutional affiliation with the
Canadian state but also in terms of how Canada may recognize indigenous nationhood
within the context of existing international legal understandings. Accepting that many
nations can exist in one state frees parties in indigenous/non- indigenous negotiations to
formulate creative and innovative ways to allow desirous those indigenous nations to
become a real part of Canadian federalism. Examining the Québec Secession Reference
can provide the Canadian nation-state with a means to envision how Canada can be
organized as a multi-nation state.
Supreme Court jurisdiction over ‘nationhood’
The second of the three questions the Supreme Court set out to address in the Secession
Reference is the most relevant to our discussion here. The two-part second question
reads:
Does international law give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally? In this regard, is there a right to self-determination under international law that would give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally?
Before addressing the actual question itself, the Court first ruled that as a judicial body,
had it did indeed have the right to pass judgment on this issue. Despite its status as a
domestic court, the Court reasoned that, by ruling, it was not trying to act as an arbiter
between sovereign states; rathe r, it merely offered “an advisory opinion on certain legal
aspects of the continued existence of the Canadian federation.”2
The Court’s view of its own place as a reference body is very important for
indigenous peoples, especially for those who would look to the Supreme Court to play a
role in pressuring the Canadian state to recognize indigenous peoples as nations. By the
1 Reference re Secession of Quebec, [1998] 2 S.C.R. 217. Hereafter, Secession Reference. 2 Ibid., 109.
113 Court’s rationale, it should also be able to answer the question of whether or not
indigenous peoples in Canada are nations as understood by international law. By handing
down an opinion, the Court would not be determining a fact of law. In the context of
international law, the Supreme Court of Canada’s advisory decision would have no effect
on the actual status of indigenous nationhood. Rather, the Court would be advising
Canada on an issue intimately involved in “legal aspects of the continued existence of the
Canadian federation,” namely, whether or not that federation is actually made up of more
than one nation.
Bringing such a volatile issue to a domestic court for an advisory opinion, if
handled correctly, could bring international attention to indigenous issues in Canada yet
placing such a powerful symbolic decision in the hands of the courts presents its own
dangers, namely that a ruling against indigenous nationhood would only validate current
state policy. Entering into a full- fledged debate on the merits, dangers, and practicality of
endeavoring to reference the Supreme Court of Canada on indigenous nationhood is
beyond the scope of this paper. However, the possibility that the Supreme Court may
make such a determination and the possible results of that determination are important to
keep in mind, especially in light of some of the Court’s other comments in the Québec
Reference, most notably on the legitimate justifications for the secession.
Right to secession under international law
In reviewing the oftentimes amorphous constructs of international law, the Supreme
Court found no clear right to unilateral secession for component parts of states.
Secession must therefore, the Court continued, be based on the self-determination of
peoples.3 Turning its attention to self-determination on the international stage, the Court
found that international law generally expects self-determination to be carried out within
existing nation-states, or as internal self-determination. Echoing the conclusion reached
by this study’s review in Chapter 1, the Court found that any recognition in international
law of the right to self-determination is accompanied by clear language protecting
3 The Court also noted that secession could also be based upon “a weak argument that secession is allowed because it is not expressly prohibited.”
114 ‘territorial integrity’ and the ‘stability of relations between sovereign states.’ The Court
summed its view by saying
a state whose government represents the whole of the people or peoples resident within its territory, on a basis of equality and without discrimination, and respects the principles of self-determination in its own internal arrangements, is entitled to the protection under international law of its territorial integrity. 4
Only in specific cases does international law seem to allow for external self-
determination, or secession. 5 Quoting Antonio Cassese,6 the Court outlined the occasions
where external self-determination would be legal internationally:
The right to external self-determination, which entails the possibility of choosing (or restoring) independence, has only been bestowed upon two classes of peoples (those under colonial rule or foreign occupation), based on the assumption that both classes make up entities that are inherently distinct from the colonialist power and the occupant power and that their ‘territorial integrity,’ all but destroyed by the colonialist or occupying power, should be fully restored.7
In addition to colonial rule or ‘subjugation, domination, or exploitation outside a colonial
context,’ 8 the Court identified a third reason for allowing external self-determination.
Though there is no clear international standard by which to judge this criteria, the Court
found that when peoples are blocked from meaningful exercise of self-determination
internally they may externally self-determine.9
The Court’s decision in terms of Quebec is clear. Though “the right of colonial
peoples to exercise their right to self-determination by breaking away from the ‘imperial’
power is not undisputed [in international law], [it is] irrelevant to this reference” as
Quebec is clearly not under colonial domination. 10 Similarly, Quebec’s substantial and
4 Ibid., para. 130 5 Ibid., para. 127 6 Antonio Cassese, Self-Determination of peoples: A legal reappraisal (Cambridge: Cambridge University Press, 1995), 334. 7 Secession Reference, para. 132. 8 Ibid., para. 133. 9 Ibid.,, para. 135. 10 Ibid.,, para 132.
115 constitutionally entrenched involvement in the workings of the Canadian state make it
“unnecessary for present purposes to make [the] determination” of whether Quebec is
being blocked from meaningful internal self-determination. 11 The Supreme Court of
Canada thus found that Quebec had no right to secede under international law.
The Supreme Court’s ruling, though it did not recognize Quebec’s right to
unilateral secession, provides guidance to indigenous peoples hoping to use Canada’s
own political and judicial systems to secure their rights as nations. By the Court’s own
reasoning, if the indigenous peoples who find themselves within Canada’s claimed
borders are unable to effectively internally self-determine, they would have a right to
seek external self-determination. Similarly, if indigenous peoples can successfully assert
their status as yet-to-be-fully-decolonized peoples, they would have a right to external
self-determination. Indigenous peoples may not want to seek external self-determination
at all, but by making connections between the denial of self-determination, the colonial
regime put in place without indigenous participation, and the continuance of those
structures and institutions today, indigenous peoples could make a strong argument using
the Court’s own language that the relationship between the Canadian state and
indigenous peoples has yet to be fully decolonized.
However remote this possibility may seem, indigenous peoples can encourage
such recognition by using decolonization to speak about their struggle. As noted earlier
in this essay’s discussion of the BC treaty process, anything less than a nation-to-nation
negotiation would fail to continue the process of decolonization. Importantly,
establishing decolonization as the goal of negotiations reformulates the ‘problem’ of a
multi-nation Canada: the question is not how to ‘fit’ indigenous peoples into Canadian
federation, but rather what sort of decolonized self-determination do indigenous peoples
want and how, if at all, do their nations want to affiliate with the Canadian state.
Canada, federalism, and flexibility
Whether recognition of indigenous nationhood comes in the form of a groundbreaking
Supreme Court decision or, more probably, is the result of the gradual evolution of
Crown understanding, discerning what that recognition means for the Canadian nation-
11 Ibid., para 135.
116 state will be a matter of intense and lengthy negotiation, conversation, dialogue, and
compromise. There are certainly many options, too numerous to mention here, as to how
to proceed. Working to realize the parameters developed in this paper – the recognition
of indigenous sovereign nationhood, the redress of violations of the norm of self-
determination, and the continued existence of the Canadian state – adds to the challenge.
Fortunately, Canada’s existing governance system and constitution provide options and
guidance for imagining and implementing a multi-nation federal state.
Federalism in Canada
As a normative and philosophical term, federalism is based on the idea that “political
organization should seek to achieve both political integration and political freedom by
combining shared-rule on some matters with self-rule on others within a system founded
on democratic consent.”12 In line with this vision, a federal state typically distributes
power between at least two authorities. Citizens are subject to the authority of both but
unlike a unitary state, the national authority in a federal state is not dominant over the
other levels of government.
Wheare’s famous definition of federalism encompasses this relationship.
According to his definition, federalism is
The method of dividing powers so that the general and regional governments are each, within a sphere, coordinate and independent. 13
Each level of government, the central authority and any constituent parts, possesses a
distinct and autonomous area of authority. To ensure that each level of government
remains sovereign within its own sphere, federalism requires an entrenched constitution
with a similarly entrenched division of powers that can not be unilaterally altered by a
single level of government. As mentioned earlier in this study, federalism thus features
constitutionally protected powers rather than powers delegated from one level of
12 Ronald L. Watts, “Federal Systems and Accomodating Distinct Groups: A Comparative Survey of Institutional Arrangements.” Institute of Intergovernmental Relations Working Paper Series [1998(3)]. Available from < http://qsilver.queensu.ca/iigr/ Working_Papers_Series/ Watts_98(3).html> [July 2000] [hereafter, “Accomodating Distinct Groups.”] with internal reference from Daniel J. Elazar, Exploring Federalism (Tuscaloosa, AL: University of Alabama Press, 1987). 13 K.C. Wheare, Federal Government. 1st ed. (London: Oxford University Press, 1946)
117 government to another. Though federal political systems can take many forms, including
federation, confederation, associated statehood, regionalized union, or constitutional
home rule,14 all forms contain a balance of shared rule consisting of institutions for
common policy making and administration and constitutionally protected self-rule.
Interestingly, Canada’s first Prime Minister, John A. MacDonald, wanted the new
dominion to be a unitary state similar to England, not a federal one. 15 Québec, however,
demanded a federal state in which the culturally French territory could protect its own
unique institutions and culture. Québec’s influence on the formation of Canadian
federalism is evidenced by the division of powers in s.91 and 92. The provinces are
given powers relating to the areas where the French and English cultures were most
different, for example law (Québec was able to maintain its French civil law,) education
(socialization into French culture and systems of learning), language (recognition of
English and French), and solemnization of marriages (controlled by the French Catholic
church at the time). Québec’s zealous defense of its powers as a province has helped to
prevent Canada from becoming more centralized with the passage of time.16
Federalism: Flexible, diverse, and able to accommodate national claims
Several important traits of federalism and the federal state recommend it as a viable
political system for accommodating the national claims of two or more nations within a
single state. By allowing several levels of government to share power coordinately
without the subordination of one to the other, each can exercise sovereignty within its
constitutionally defined heads of power. This arrangement suits nations sharing a
territory because it allows for independence of action and prevents unilateral
infringement on protected powers while still allowing economically interdependent and
14 See Watts, “Accommodation of Distinct Groups” for these and other examples. 15 Ibid. 16 The judiciary also played an essential role in restricting the broad s.91 federal head of power over “peace, order and good government” to three main branches, the “gap” branch, the national concern branch and the emergency branch. Lords Watcon and Haldane of the Judiciary Council of the Privy Council (JCPC) played an important role in elevating the provinces to coordinate status with the Dominion. As a result of this and other judicial decisions, the Constitution of Canada is much less favorable to federal power than would be suggested by merely comparing it with the constitution of the United States, for example (see also Whaere’s image of Canada as a “quasi-federal” state).
118 resource sharing partners to closely coordinate and formulate statewide policies and
priorities. Quoting Ignatieff, Blathazar notes
Federalism ... is just a particular way of sharing political power among different peoples within a state ... Those who believe in federalism hold that different peoples do not need states of their own in order to enjoy self-determination. Peoples ... may agree to share a single state, while retaining substantial degrees of self-government over matters essential to their identity as peoples.17
Kymlick adds that federalism is one of the few mechanisms available for recognizing
desires of national minorities within a single state.18
In addition to providing component parts with sovereignty in their own sphere,
federalism is by nature flexible and offers a range of possible formulations, the limits of
which have yet to be realized. Indeed, it has been said that there are as many variants of
federalism as there are federations. 19 The diversity of federal models and the diversity of
circumstances in which a federal system can be used means that “one cannot therefore
simply pick models off of a shelf… Even where similar institutions are adopted, different
underlying conditions may make them operate differently.”20 Ultimately the success or
failure of a federal arrangement will depend on the continued consensus and support of
its constituent groups.
The flexibility of the federal model and its basis in consent are essential criteria
for a political system trying to accommodate several or many nations. In Canada, where
nations vary greatly in population and size of land base and where there is a history of
imposed governance institutions and structures, these characteristics are particularly
important. Dividing power between the larger state, nations, and provinces will require
all of federalism’s flexibility as well as creativity and innovation on the part of those who
would mold it to the Canadian context.
17 Michael Ignatieff, Blood and Belonging (New York: Viking, Penguin Books, 1993), 110 quoted in Louis Balthazar, internet. 18 Kymlicka, 136. 19 Simeon, Richard. “Considerations on the Design of Federations: The South African Constitution in Comparative Perspective.” Institute of Intergovernmental Relations Working Paper Series [1998(2)]. Available from <http://qsilver.queensu.ca/iigr/Working_Paper_Series_Info/Simeon_Abstract_98-2.html>. [July 2000] 20 Watts, “Accommodation of Distinct Groups,” internet.
119
Treaty Federalism
Two of the most important requirements of a new governance system for the Canadian
state are recognition of multiple nations and the freedom of those nations to self-
determine. James Youngblood Henderson offers an alternative to the current relationship
between indigenous peoples and non-indigenous peoples in Canada by introducing a
form of federalism particularly suited to Canada. Existing treaties, signed between the
indigenous peoples and colonizing powers, did not affect the international status of
indigenous nations, Henderson argues, but rather created a distinct constitutional
relationship with the Crown. The realm created by this relationship was separate
from the colonial assemblies that were created by the Crown-in-Parliament, which ended prerogative authority over British subjects. These derivative governmental bodies [and] had no constitutional capacity to extinguish or modify vested prerogative rights in treaty order since these rights continued as a distinct part of the constitutional law of Great Britain.21
‘Treaty federalism’ for Henderson would return treaties to their rightful status as nation-
to-nation agreements that created a “bilateral sovereignty of a kinship state in a shared
territory.”22 Henderson’s vision recognizes the unique affiliation of treaty nations with
Canada and the bonds of mutual obligation and self-determination formed by those
treaties.23 Watts highlights that treaties themselves have federal character because they
“imply a balance between agreed mutual obligations among the signatories and some
retained autonomy.”24
Treaty federalism recognizes the nationhood of indigenous treaty signatories and
acknowledges two kinds of existing federal relationships in Canada. One, “established
through the various treaties entered into by aboriginal and non-aboriginal parties since the
early 1600s,” forms a unique relationship “between the government of Canada and
aboriginal peoples…”25 The other, “established by the British North America
[Constitution Act], 1867,” defines “the relationship between the central government of 21 James Youngblood Henderson. “Empowering Treaty Federalism.” In Saskatchewan Law Review 58 (1994), 242-329; 260 (internal citations omitted). [hereafter “Empowering Treaty Federalism”] 22 “Empowering Treaty Federalism,” 246. 23 Watts, “Accomodating Distinct Groups,” internet. 24 Ibid. 25 Ibid.
120 Canada and the provinces.”26 These distinct systems provide a model of two distinct
structures that are unified ‘under’ the government of the state of Canada. Any
reconfiguration of the Canadian state will need to synchronize these two systems into a
practical harmony. 27
Youngblood’s vision of treaty federalism brings with it the reminder that the
indigneous peoples in Canada are nations who for the most part never agreed to subsume
themselves under the British North America Act (Constitution Act), 1867 and who were
thus not signatories to the Constitution of Canada. This exclusion is at the root of the
violation of the constitutive aspect of the norm of self-determination, and continued
governance of indigenous peoples under this system is a violation of the norm of self-
determination’s on-going aspect. Youngblood’s model would address both aspects by
empowering a federal system that indigenous peoples actively created and restoring it as
part of modern-day Canadian state governance structures. Treaty federalism would also
allow indigenous peoples to join Canada not simply as provinces or special minorities
(though some nations could choose these forms of affiliation) but as nations.
Territorial and non-territorial federalism
Youngblood’s model of treaty federalism captures the essence of a governance
system that will recognize many nations within one state and allow those nations to
effectively self-determine. Combining other federal visions with the base of treaty
federalism can help address the challenges faced by a Canadian multi-nation federal state.
Though treaty federalism is based on existing treaties, come indigenous nations in
Canada have not signed onto treaties and many existing treaties have not been honored.
A logical first step would be to fully honor existing treaties and negotiate new treaties
with non-treaty nations but both these steps are, of course, not as simple as they may
seem.
Historical treaties are based on land ‘cessions’ and the establishment of reserves.
Nations without treaties would, in most cases, want to secure a stable landbase.
Territorial federalism, where constituent units are based the control of a defined landbase,
26 Ibid. 27 Ibid.
121 serves as the basis for Canadian federalism now; provincial units are defined by
territory. 28 Importantly, however, governing power within a territorial federal system is
dependant on majority population. The governance structure of the recently formed third
territory in Canada, Nunavut, represents a version of territorial federalism. Though it is
perhaps unlikely that the non-indigenous population in that territory will ever outnumber
the indigenous population, if the numerical majority/minority balance does shift,
indigenous peoples will find themselves virtually cut out of the power structure. In this
form, territorial federalism does not recognize indigenous nationhood but rather
recognizes the numerical superiority of a particular population.
As this example shows, basing treaty federalism on purely territorial units could
result in indigenous nations losing the ability to choose their preferred expression of self-
determination. To preserve indigenous nationhood and the ability of nations to freely
self-determine, constituent units of the federal state may in some cases need to be
organized on a non-territorial basis. Quoting Lijphart, Watts argues that
Traditional definitions of federal political systems have insisted that federal arrangements refer to distribution of responsibilities among territorial political units and refer to those involving non-territorial groups by other terms such as consociational political arrangements. 29
If the primary characteristics of federalism are the division of powers between levels of
government and distinct, protected powers for each level, however, then it seems that
non-territorial federalism can be a valid component of a federal system. Belgium offers a
useful example of a federal system that combines territorial with non-territorial
federalism.
The Belgium example
Watts notes that even among the few federations who do recognize non-territorial groups,
Belgium’s 1993 constitution uniquely recognizes both territorial regions and non-
territorially based communities as constituent units. The Belgium constitution 28 Kymlicka, 136. 29 Watts, “Accommodation of Distinct Groups,” quoting Arend Lijphart, Democracy in Plural Societies: A Comparative Exploration (New Haven: Yale University Press, 1977) and Democracies: Patterns of Majoritarian and Consenesus Government in Twenty-One Countries (New Haven: Yale University Press 1984).
122 exclusively divides powers between the federal government and six constituent units,
three territorially delineated units (the Flemish Region, Waloon Region, and Brussels-
Capital Region) and three non-territorial units (French-speaking, Dutch-speaking, and
German-speaking).30 The territorially delineated units, or Regions, resemble American
states and were formed based upon “historically inspired economic concerns” and a
desire for more autonomous powers.31 As of 1995, these Regions were further divided
into 9 provinces and 589 communes.32 The non-territorial units, or Communities, refer to
“the persons which make them up and to the bond which unites them,” namely language
and culture.33
The powers constitutionally possessed by these units reflect their origins and
constituent populations.
The [territorial units] have exclusive or partial jurisdiction over matters related to land use, environment, economic policy and energy policy, while the [non-territorial units] have responsibility for cultural affairs, language use, education, and personalized matters including international cooperation in such matters.34
This arrangement represents a variation on the idea of subsidiarity, or the notion that
control should lie with the persons closest to the legislative area in question. Territorial
units primarily deal with land and material resources and the preservation and exchange
of those commodities. The non-territorial units, on the other hand, legislate around
cultural affairs and areas that influence the transmission of culture, such as education and
language. Watts notes that the greatest challenged faced by such an innovative system is
the arrangement’s intrinsic complexity and the need to constantly engage in difficult
negotiations to work out overlapping jurisdictions and responsibilities.35 Though it is too
early to pass judgment on the Belgium example, the continued existence of the system
and the support it has received from the citizens of Belgium proves its salience as a
workable federal model.
30 The Government of Belgium. Structure of Government, available from <http//Belgium.fgov.be/ abtb/en_federal_3.htm> 31 Ibid. 32 Ibid. 33 Ibid. 34 Watts, “Accommodation of Distinct Groups,” internet. 35 Ibid.
123 Non-territorial federalism as it is expressed in Belgium may not be of direct use in
Canada but it does offer some interesting ideas. Belgium’s Communities are not
considered nations and could properly be called minorities. In this sense, the model
would not effectively recognize the nationhood of a constituent unit. Yet, the large
numbers of indigenous peoples who do not live on ‘reserves’ or who will not be living on
other lands controlled by indigenous nations will have to figure into the creation of a
multi-national Canadian state. Providing indigenous nations non-territorially based
authority in areas of culture, education, or even law enforcement would allow members
of indigenous nations who do not live on the national territory to have certain cultural and
social rights protected. Additionally, for nations who have a very limited landbase due to
land seizures, sale, or non- indigenous occupation, non-territorial federalism offers the
opportunity to exercise authority over select matters particularly relevant to the nation’s
needs.
Asymmetrical Federalism
Treaty and non-treaty nations, territorial units and non-territorial units, provinces and
nations – the number of different governmental units with constitutionally protected,
independent powers in a multi-national Canada could be numerous. Youngblood’s model
of treaty federalism readily accepts this reality. Because his model recognizes that treaty
nations and provinces have different terms of union with the larger Canadian state, treaty
federalism presupposes asymmetrical terms of affiliation of constituent units. It is
tempting to say that because all units may not have the same powers or the same
relationship with the state, they will not all be equal. This equation, however, assumes
that equality means sameness, and this is not necessarily the case. Kymlicka suggests
that asymmetry between federal units is not only possible but will be necessary in a
multi-nation state. Enter asymmetrical federalism.
Liberal democracies, Kymlicka says, are committed to the equality of individual
citizens, yet equality for citizens does not necessarily equate to equal powers for federal
units. Rather, asymmetrical federalism can ensure the equality of individuals by making
sure that members of the numerical minority receive same hearing as members of
124 numerical majority. 36 Particularly in a federal state that features both national and non-
national units, nations will have rights and powers that provinces simply do not.
Different rights can be shown to be morally acceptable and consistent with liberal
democratic principles but this requires accepting the nationhood of indigenous peoples.
The real question then becomes one of defining equality. Kymlicka argues that
attachment to a particular vision of equality is "derived from a prior commitment to the
idea of common nationhood, not vice versa."37 Asymmetrical federalism has been
rejected because it is inconsistent with a specific sort of equality "required by and
implicit in" a common nationality. For example, the debate over the Charlottetown
accord inclusion of special rights for Quebecois was not over what sort of inequality there
should be but rather whether inequality should exist at all. Once indigenous peoples are
recognized as nations, the rights that nations possess as groups of indigenous individuals
become categorically different from those of individual Canadians. They may be very
similar to those rights possessed by individual Canadians as members of a ‘Canadian
nation’ but the rights of indigenous nations cannot be considered as symmetrical with the
rights of individual non- indigenous Canadians, even if they are congregated in the forms
of provinces.
Accepting that a multi-nation state may have asymmetry among its federal units
greatly expands the possibilities of innovative and creative federal structures that will
honor indigenous nationhood and their claims to self-determination. The Belgium
example presented above showcases asymmetrical power distribution among federal
units: Communities and Regions do not share the same powers. In fact, despite the
commonly held view that federations should require parity, Watts argues that
differences in size, population, resources and political interests has meant that in practice significant variations in the political influence and actual powers of the constituent units have been common in federations. The result is that most federations have been marked by de facto [in practice] asymmetry among their units.38
36 Kymlicka, 141. 37 Kymlicka, 142. 38 Watts, “Accommodation of Distinct Groups,” internet with internal reference to Charles D. Tarlton, "Symmetry and asymmetry as elements of federalism: a theoretical speculation," The Journal of Politics 27, no. 4 (1965).
125 The Canadian federal system in fact has aspects of de facto asymmetry as well as de jure
(in law) asymmetry due to its distinctive constitutional provisions regarding Québec and
the distinct terms of union for each province. Working with the asymmetry inherent in
treaty federalism, indigenous nations, even those who have yet to sign treaties, can
carefully negotiate terms of union with the Canadian state that allow them to fully self-
determine and retain their nationhood.
Other federal elements that best facilitate national self-determination
Youngblood’s model of treaty federalism provides a basic structure for a relationship
between indigenous nations and the Canadian state that recognizes indigenous
nationhood and allows for national units to self-determination in their own unique ways.
Importantly, this structure emerges directly from Canada’s state apparatus as it currently
exists and uses documents and ideas that are already a part of Canada culture and history.
Asymmetrical federalism, which is an important element of treaty federalism itself, helps
describe the nature of power relationships between constituent units and between units
and the state, and also describes the diverse terms of union for constituent units.
Territorial and non-territorial federalism combine to describe how the units themselves
will be constituted.
Taken together, these federal elements describe the basic power relationships
possible in a new Canadian state and identify some possible components of that state.
Filling out this picture, however, will require determining an appropriate division of
powers between the state and constituent levels of government; describing the nature of
intergovernmental and intrastate relations; and laying out frameworks for fiscal relations.
As with every step of the process of re- forming the Canadian state, these issues would be
carefully negotiated and continually revised. Some aspects of other federal models,
however, recommend themselves to the particular circumstances and needs of Canada
and the nations within its borders. Both Germany and Canada are First World nation-
states with successful federal systems as instructive examples.
126 Division of powers and intergovernmental relations
Any federal state requires a division of powers between the state (central) government
and the governments of the constituent units. Treaty federalism’s asymmetrical model
will mean that this division will vary among constituent units, but the tenor of that
division will most likely remain constant. In Canada today, federal and provincial heads
of power are distinct and have very few areas of overlap. Technically, this clear division
should allow the federal and provincial spheres to function virtually independently. The
high degree of interdependence and de facto concurrency inevitable in any federal
system, however, ensures that intergovernmental relations, or the relationships between
levels of government, are indeed at the heart of the Canadian system. 39 As consistent
with the divided model, however, the machinery of intergovernmental relations has
developed in an ad hoc way and grown from interactions necessitated by concurrent
jurisdictions, such as direct taxation and indirect taxation over non-renewable natural
resources, and the natural interdependence of the two levels in the policy arena. The
intergovernmental relations now the norm in Canada have come to be called executive
federalism. Says Simeon
The relations among governments are conducted among high level officials and ministers - executive federalism - in which close ties among functional program officials at each level are subordinated to broader strategic considerations of power, turf and status.40
Unlike Canada’s model, broad areas of concurrency characterize Germany’s
division of powers. The constituent units of Germany’s federal state, the Länder, may
legislate in areas of concurrency but only where the central government has not; federal
law overrides Länder law in areas of conflict. The federal government through the lower
chamber, or Bundestag, generally implements broad framework legislation. Once
approved by the Länder-appointed Bundesrat, the legislation is implanted by the Länder
with local variation. 41 Because so many legislative areas require constant communication
and negotiation between the two levels of government, structured and institutionalized
39 Simeon, internet. 40 Ibid. 41 Infoplease. “Germany – government,” available from <http://www.infoplease.com/ ce6/world/A0858400.html>
127 intergovernmental institutions mark intergovernmental relations in German federalism.
Unlike the ad hoc relations of executive federalism, the results of these interactions “are
formalized by treaties or agreements, which have the full force of law.”42
A new federal system including indigenous peoples would have to consider the
effects of these models of dividing power between levels of government. Under the
Canadian model, few areas of concurrency would give indigenous nations wide latitude
to implement diverse programs without state level intervention or interference. The
German model features a wide range of shared powers that may unnecessarily impinge
on the freedom of sovereign nations. However, as a result of numerous concurrent
powers, the German model offers institutionalized intergovernmental relations that are
formalized through legal agreements. Given the history of distrust between indigenous
peoples and the state, these sorts of legal protections are highly desirable. Continual
negotiation and the maintenance of the relationship between the Crown in indigenous
peoples has been continually prioritized by indigenous peoples at negotiations with the
Crown, and a new federal system must support and enable mutual understand ing and
cooperation. As Simeon highlights, “the [German] model places a very high value on
consensus and agreement; the [Canadian] model leans toward more competitive
adversarial federalism.”43 For many indigenous peoples, and non- indigenous peoples, a
central state government based on consensus would be more desirable than a more
confrontational model.
Ironically, the reason intergovernmental relations remain uncodified in the
Canadian model is that such communications are ostensibly unnecessary. The emergence
of executive federalism shows that even in a system with few concurrent powers, a high
degree of intergovernmental communication and cooperation will be required. A clear
division of powers with low concurrency combined with institutionalized modes of
intergovernmental relations whose results are protected through agreements or treaties
with the full force of law would combine aspects of these two systems into one suitable
for a state of many nations. Member nations would retain independence of action and
protection while maintaining close ties with the state level government.
42 Simeon, internet. 43 Ibid.
128
Intrastate federalism
Intrastate federalism, another structural and power issue in a federal state, refers to the
formal presence of constituent units in the decision making process of the central, or
state, governing apparatus. Of Canada’s intrastate system Simeon says
there is no formal institutional bridge linking provincial and national politics, no institutional means through which the interests of provinces (whether the ir people or their governments) are directly represented with the central government.44
Typically, the second federal chamber provides the forum through which constituent
units can impact state-wide affairs. In Canada, however, the Senate has played little role
in asserting regional interests. This failure is compounded by the strict party discipline of
the Westminster-style Canadian parliamentary system that impedes the ability of MPs to
act and speak for the needs of the regions they ostensibly represent.45
Unlike the mostly ineffectual Senate in Canada, the second federal chamber in the
German model, the Bundesrat, is a powerful legislative body. Made up of Länder
Premiers and other Land Government appointees, the requirement of Bundesrat approval
serves as an important qualifier on the powers of the central government. With its
members subject to recall at any time, the Bundesrat is able to bring land interests
directly into the national legislative process.46 The power of the Bundesrat, unmatched
by the Canadian Senate, is intended to balance out the paramountcy of the state
government in many areas of concurrency. In the Canadian system, where few areas of
legislative concurrency make paramountcy less of an issue, a strong second federal house
is also less important. For a federal state constituted of many nations, however, a strong
second house would serve as an important curb on state action and protect the interests
and sovereignty of constituent nations. The power balance between the constituent units
and the state governments would have to be carefully balanced – too much power to the
second house would paralyze the state government and render it unable to address issue
44 Ibid. 45 Ibid. 46 Ibid.
129 of state-wide concern while too little power to the representatives from constituent units
could threaten the nationhood of member units.
Fiscal relations
The fiscal relationship between levels of government is another important component of
the balance of power between levels of government in federal states. Simeon’s
observation that without fiscal autonomy, formal jurisdictional autonomy can be
meaningless47 highlights the importance not only of resource allocation and control but
also of taxation authority. In Canada today, each level of government has independent,
and sometimes overlapping, powers of taxation. Rather than receiving tax revenue from
the central government, Canadian provinces can tax independently and add the revenues
to their own coffers. Under the German model, neither level of government holds
substantial exclusive powers of taxation. Rather, taxation is based on formulas carefully
negotiated between both levels of government, and revenues are shared accordingly.
Equalization of conditions in the Länder is a stated goal of such negotiations, fiscal
transfers between levels of government and among the Länder are standard.48
Despite the independent taxing ability of both provinces and the state, Canada
also offers a good example of the extent to which fiscal flows can be a part of a federal
system. Simeon notes that debates over the appropriate extent of fiscal relations
(including conditional monetary flow and taxation) between levels are still continuing in
Canada and “will need to be dealt with it indigenous peoples are to participate in federal
Canada.”49 The German and Canadian federal systems show that funding exchanges
between levels of government can be a key feature of a vibrant federal state.
Under the current Canadian governance structure, the Crown funds indigenous
communities in many ways. Some indigenous nations do not currently have the capacity
to fund their own governing institutions. While the relationship between the state and
indigenous nations would be different from that between the state and provinces, there is
no reason to assume that the redress for past and continuing violations of the norm of
self-determination (including land and resource theft), the fulfillment of treaties, or the
47 Ibid. 48 Ibid. 49 Ibid.
130 continuing fiduciary relationship between indigenous peoples and the Crown would not
involve the exchange of funds. Indeed, as equal member nations of a larger Canadian
state, indigenous nations would be equally as entitled to the financial and material
resources of the state as the Canadian nation (currently containing provincial constituent
units). In this regard, it is noteworthy that equalization payments are a part of both the
German and Canadian models of federalism. 50
Multi-national federalism
The models of federalism discussed above show that the Canadian federalism could be
reconceived as a federal system that recognizes and affirms indigenous nationhood, and
whose political institutions and structures reflect this recognition. No existing model can
be exactly transferred to the Canadian context and certainly there are other existing
federal systems that can offer further instructive examples,51 but the structures of treaty
federalism are already in place in Canada and they can be developed and nurtured to
recognize indigenous nations and allow all peoples to realize self-determination.
The obvious question then is, why bother? Why does Canada need to change?
Throughout, this study has explicitly and implicitly responded to this question. The
primary reason is, of course, justice. By the international law of the colonizing nations
who settled in the lands now know as Canada, the rights of indigenous peoples were
violated – indigenous peoples suffered violations of their right to self-determination; their
sovereignty over lands and resources and their status as nations was denied, abused, and
ignored; and the results of these injustices are still felt today in indigenous communities
across Canada. Were these violations overlooked by indigenous peoples themselves and
had the past 400 years and more not been marked by indigenous efforts to affirm, assert
negotiate, litigate, and fight for justice of one form or another, I don’t think this paper
would have been written.
50 Equalization payments in Canada are constitutionally protected in s.36 of the Constitution Act, 1982. 51 Watts, “Accommodation of Distinct Groups,” Appendix B “summarizes arrangements in other federations and federal political systems not containing Aboriginal groups but having significant features for accommodating distinct groups.” Some of the systems notes are Belgium, Germany, Switzerland, and Spain.
131 The fact is that most indigenous peoples have asserted their right to self-
determination and worked to have their sovereign na tionhood recognized. Those who
have not are able to pursue their continued existence in any way they choose, but nations
who are fighting for decolonization and self-determination cannot be ignored. As Tully
has argued
The [indigenous peoples themselves], the Supreme Court, International law and liberal-democratic principles of justice converge on the conclusion that there is no turning back on this path. A just relationship has to be established, for reasons of constitutional and democratic legitimacy, but also for pragmatic reasons - stability, improving the social and economic conditions and capacities of native communities, aboriginal self-government, developing a framework for land, water and resource use and for environmental protection. 52
Quoting other scholars and indigenous leaders who have argued similarly could fill
another chapter, and many of their words have been used already.
Canada’s continued efforts to domesticate and assimilate indigenous peoples into
the current system are not the honourable or just way to address the ‘Canada’s Indian
problem’ and assure the state’s economic, social, and cultural future. Neuberger’s
comments regarding Africa are applicable to Canada and address the insufficiency of
democratic self-determination within the Canadian nation-state for indigenous peoples.
His comments are worth reproducing here in full:
The question may be raised of why democracy alone does not appear to be sufficient for those who want freedom? Why do they aspire to have both national and democratic self-determination? The answer is that in a stable and functioning democracy, the minority must have the feeling that it may sometime become a majority. In a multinational and heavily polarized democracy, the minority nation feels it has no chance ever to rule the whole country or to participate in government. The Irish felt that way in nineteenth century Britain, and therefore, they fought for secession, although as individuals they had all the democratic rights in the United Kingdom. For a minority nation to live in a nation-state which is firmly identified with a dominant nation and where the dominant nation may exploit its numerical preponderance and disregard aspirations of the minority, the democratic state may not be much different
52 Tully, BC Treaty Process.
132 than a tyranny. For that very reason, John Stuart Mill regarded national self-determination as a precondition for political freedom. He supported the nation-state to achieve democracy and supported democracy to achieve the nation-state.53
Federalism can provide a means of avoiding the realistically impossible (and probably
undesirable) ideal of one state for every nation and one nation for every state that Mill
seems to suggest while assuring that the aspirations of the numerical minority indigenous
nations are realized. The process of creating such a federal system is monumental but not
impossible and becomes even more manageable when viewed as a continuing process
rather than a finite event.
While work to alleviate the real social issues in indigenous communities can not
be put on hold while political restructuring and relationship building through
decolonization continue, empowering indigenous nations politically will help indigenous
peoples as individuals, communities and nations. Negotiating the balance between
immediate needs and ultimate goals is a task for nations themselves and their decisions,
whatever they may be should be respected. However, it is dangerous to proceed without
a continually evolving yet clearly defined vision of the relationship indigenous peoples
hope to achieve and of the actual political structures that will manifest that relationship.
Similarly, moving forward in negotiations with the Crown, without a mutually agreed
upon destination, even if ‘just’ for devolution of select programs, could be disastrous if
the indigenous nations involved seek recognition of their soverign nationhood. Progress
is not just motion, but movement toward an accepted goal—motion as much as possible
in the ‘right’ direction. Justice demands progress, and nothing less.
53 Neuberger, National Self-Determination , 16. John Stuart Mill reference given as: J.S. Mill, On Representative Government (Indianapolic: Library of Liberal Arts Press, 1958), 229-237.
133
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VITAE Surname: Roy Given Names: Audrey Jane Place of Birth: Fall River, Massachusetts, US Educational Institutions Attended: University of Victoria 1998 to 2001 Cornell University 1994 to 1998 University of Waikato 1996 to 1996 Degrees Awarded: B.A. (cum laude) Cornell University 1998 Honours and Awards: Fulbright Fellowship 1998 to 1999 Cornell University College Scholar 1995 to 1998 Cornell University Tradition Fellow 1995 to 1998 Phi Beta Kappa Honor Society Phi Kappa Phi Honor Society Golden Key National Honor Society Publications: Audrey Roy with Taiaiake Alfred. “Legislation Affecting Canada’s Native People” &
“List of Canadian Legislation Affecting Native People.” In The Native North American Almanac, ed. Duane Champagne. Taft Group, forthcoming.
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Title of Thesis:
Sovereignty and Decolonization: Realizing Indigenous Self-Determination at the United Nations and in Canada